s 55G substitions
Dear Office of the Australian Information Commissioner,
I request copy of all s 55G substituted decisions received by the Office of the Australian Information Commissioner since 2018, since a request must be a request for documents.
It may be simpler to provide a table of the date the s 55G decision was received by the Office of the Australian Information Commissioner, the FOI agency it was received from, and the date of the original FOI request (not the decision date) the s 55G substitution relates to (as the s 55G decision states this).
Yours faithfully,
Julie
Our reference: FOIREQ22/00070
Dear Julie
Freedom of Information request
I refer to your request for access to documents made under the Freedom of
Information Act 1982 (Cth) (the FOI Act) and received by the Office of the
Australian Information Commissioner (OAIC) on 9 March 2022.
Scope of your request
In your request you seek access to the following:
“I request copy of all s 55G substituted decisions received by the Office
of the Australian Information Commissioner since 2018, since a request
must be a request for documents.
It may be simpler to provide a table of the date the s 55G decision was
received by the Office of the Australian Information Commissioner, the FOI
agency it was received from, and the date of the original FOI request (not
the decision date) the s 55G substitution relates to (as the s 55G
decision states this).”
In order to process your request as efficiently as possible, I will
exclude duplicates and early parts of email streams that are captured in
later email streams from the scope of this request, unless you advise me
otherwise.
Timeframes for dealing with your request
Section 15 of the FOI Act requires this office to process your request no
later than 30 days after the day we receive it. However, section 15(6) of
the FOI Act allows us a further 30 days in situations where we need to
consult with third parties about certain information, such as business
documents or documents affecting their personal privacy.
As we received your request on 9 March 2022, we must process your request
by 8 April 2022.
Disclosure Log
Documents released under the FOI Act may be published online on our
disclosure log, unless they contain personal or business information that
would be unreasonable to publish.
If you would like to discuss this matter please contact me on my contact
details set out below.
Regards
[1][IMG] Angela Wong | Lawyer
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
1300 363 992
| [3][email address]
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OAIC reference: FOIREQ22/00070
Dear Julie
I refer to your request for access to documents made under the Freedom of
Information Act 1982 (Cth) and received by the Office of Australian
Information Commissioner (OAIC) on 9 March 2022.
Please find attached, a letter to you pursuant to s 24AB of the FOI Act,
and inviting your response by close of business on Thursday 14 April 2022.
We look forward to receiving your response prior to this date.
Kind regards
Toby
[1][IMG] Toby Shanks | Paralegal
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
1300 363 992
| [3][email address]
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Dear Angela,
The OAIC's letter of 30 March 2022 states that the OAIC has approved thousands of s 55G substitutions by FOI agencies (in some cases multiple times for the same FOI) since 1 January 2018 and that due to poor record keeping by the OAIC of these approvals this is the reason why I should have my FOI request practically refused.
It is deeply concerning to also hear thar the OAIC has no idea how many s 55G substitutions the OAIC has approved prior to 1 January 2018 because the OAIC did not collect this information.
Given the wide scale potential for abuse of s 55G - which allows for the OAIC to approve for retrospective substitutions of FOI decisions that effectively void any scrutiny of the prior decision (or refuse to make such decision) - which the OAIC has comprehensively allowed to occur despite its role as regulator - including s 55G substitutions being made two, three, even up to five years after an FOI request has been made, it calls into question whether the OAIC has been hopelessly compromised as a regulator and has actively taken steps to undermine the explicit objectives of the Freedom of Information Act 1982 to ensure the FOI system provides timely and cost effective access to public information.
As the Commissioner's own guidelines state, FOI requesters cannot be punished for the poor record keeping of an FOI agency (which includes the regulator, the OAIC).
It is also of concern that despite clearly stating in my FOI request that the OAIC could prepare a table under s 17 to summarise the documents in scope, the OAIC has ignored that despite that it would negate the arguments put by you as to the material you would need to review.
The OAIC has recently made a series of practical refusal notices using grossly exaggerated and inflated estimates of processing time, which subsequently are shown to not be reflective of the time taken to subsequently produce such material. These consultations are just being used strategically and rather cynically by the OAIC to create delays and barriers to access.
I vary my FOI only to the extent that the period of time in scope commences from 1 January 2018 since the OAIC claim this was the first time the OAIC even kept records of s 55G substitutions it had approved.
On a personal note, I bring to your attention the following that the OAIC and officers such as yourself intentionally ignore:
Increasing the transparency of, and regulated entities’ confidence in, the regulatory regime, can be expected to increase the level of voluntary compliance. This has the potential to reduce administrative costs for regulators and compliance costs for regulated entities (ANAO, 2007, p. 25).
The regulator exists to achieve objectives deemed by government and the legislator to be in the public interest and operates within the powers attributed by the legislature. A regulator is therefore accountable to the legislature, either directly or through its minister, and should report regularly and publicly to the legislature on its objectives and the discharge of its functions, and demonstrate that it is efficiently and effectively discharging its responsibilities with integrity, honesty and objectivity (OECD, 2012; Department of Public Enterprise, 2000). A system of accountability that supports this ideal needs to clearly define what the regulator is to be held accountable for, how it is to conduct itself and how this will be assessed.
This would include providing full transparency over any exercise of power that raises clear inconsistencies between what statutory objectives the regulatory is supposed to achieve and promote, and acts and exercises of power that have a clear conflict of interest with those objectives.
Ciao,
Julie
Dear Julie,
Please see attached a decision of today’s date in relation to your FOI
request.
Yours sincerely,
[1][IMG] Angela Wong | Lawyer
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
1300 363 992
| [3][email address]
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Dear Office of the Australian Information Commissioner,
Please pass this on to the person who conducts Freedom of Information reviews.
Based on information obtained about Resolve's reporting functionality, the estimates used by the original delegate are false and misleading.
I am writing to request an internal review of Office of the Australian Information Commissioner's handling of my FOI request 's 55G substitions'.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/s...
Ciao
Julie
OAIC reference: FOIREQ22/00113
Dear Julie
I acknowledge receipt of your application for internal review of the
OAIC’s FOI decision FOIREQ22/00070. A copy of the OAIC’s decision that is
subject to internal review is also attached for your ease of reference.
Section 54C of the Freedom of Information Act 1982 (Cth) requires this
office to make a fresh decision within 30 days after the day we received
your application.
Because we received your internal review application on 25 April 2022 , we
must make a fresh decision by 25 May 2022.
The reference number for your internal review application is
FOIREQ22/00113.
Kind regards
Mark
[1]O A I C logo Mark Lindsey-Temple | Senior Lawyer
Legal Services
Office of the Australian Information Commissioner
+61 2 9284 9769 | [2][email address]
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Dear Julie,
I refer to your internal review request received by the Office of the
Australian Information Commissioner (the OAIC) on 25 April 2022.
Request for an extension of time
At this stage, the due date of your FOI request is 25 May 2022.
The OAIC is undergoing a transition of ICT systems to a new provider and
there may be a delay in the OAIC’s ability to access relevant information
during this period. I now write to you formally consent, under [1]s 15AA
of the FOI Act, to extend the time for the OAIC to process your request by
30 days until Friday 24 June 2022.
We will continue to process your request as efficiently as possible
however would be most grateful if you would kindly agree to an extension
of time. We endeavour to provide you access to the relevant material as
soon as possible.
I would be grateful to receive your response to be sent by reply email to
[2][email address] as soon as you can but by COB on 10 May 2022.
If you have any further questions, please do not hesitate to contact
[3][email address].
Kind Regards,
[4][IMG] Toby Shanks | Paralegal
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[5]oaic.gov.au
1300 363 992
| [6][email address]
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Dear Toby,
On 6 May you requested an additional 30 days to be approved by me under s 15AA to increase the initial processing period to 60 days (double the processing time allowed by s 54C(3), on what is a generic claim that gives no indication of steps taken already, or how this ICT activity directly impacts internal review of a pre-existing FOI decision).
Unfortunately your request is invalid, as s 15AA is a provision of Part III of the Freedom of Information Act 1982 that deals with extending the initial processing period specified by s 15(5)(b) of the Act for to original 'requests for access', and not those under Part VI of the Act which deals with internal reviews.
Section 54(C) applies to the processing period of Internal Reviews, not s 15. This is clearly outlined in Part 9 of the Information Commissioner's s 93A Guidelines, which state:
There is no mechanism in the FOI Act for an agency and an applicant to agree to extend the time for deciding an internal review application (by contrast, s 15AA enables an agency and an applicant to agree to extend the time for processing an FOI request) ... the applicant should be fully advised of the reason for the delay, the expected date of decision and the applicant’s right to seek IC review.
It is therefore disappointing that the OAIC have disregarded their own IC Guidelines as well as the provisions of the Act by misrepresenting this request and making no mention of 'the applicant’s right to seek IC review' once deemed.
As s 15AA states:
An agency or Minister may extend the period referred to in paragraph 15(5)(b) for dealing with a request, or that period as extended under subsection 15(6) or (8) (consultation), by a further period of no more than 30 days if:
(a) the applicant agrees in writing to the extension; and
(b) the agency or Minister gives written notice of the extension to the Information Commissioner as soon as practicable after the agreement is made.
It is therefore outside the scope of s 15AA to increase the statutory processing period specified for internal review decisions in s 54(C)(3), as it only applies to Part III requests (s 15).
I am surprised you are not aware of this as it was the OAIC that drew my attention to this last year.
I would also highlight that given the OAIC has recently stated to me in correspondence of 27 April 2022, but which would also equally apply here:
As outlined in the OAIC’s correspondence of 21 March 2022, all officers operate as delegates of the Australian Information Commissioner in accordance with the exercise of her functions or powers conferred by the Australian Information Commissioner Act 2010 (Cth). Any reference to the undertaking of the procedures or processes of the Commissioner’s office should therefore be to the OAIC, rather than individual officers.
On that basis above, the OAIC deemed it inappropriate for the OAIC to make decisions under the Act in which it was both reviewer and respondent, which would equally apply to any situation where the OAIC is both agency applying for and entity approving under the FOI Act (given the direct conflict of interest).
Ciao
Julie
OFFICIAL: Sensitive
Dear Julie,
Please find attached a Decision in the matter of FOIREQ22/00113.
Best Regards
Mark
[1]O A I C logo Mark Lindsey-Temple | Senior Lawyer
Legal Services
Office of the Australian Information Commissioner
02 9942 4118 | [2][email address]
[3][IMG] | [4][IMG] | [5][IMG] | [6]Subscribe to Information Matters
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