Dear Department of Veterans' Affairs,

Under s 15(1) of the Freedom of Information Act 1982 (FOI Act), I make a s 15(2) compliant request for access to a s 17 produced document or documents as appropriate to the scope.

This request is an application for the purposes of the FOI Act and notices under the FOI Act are to be sent to email address this request came from.

Scope:
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The Department of Veterans’ Affairs provides various forms of direct, indirect, or otherwise in-kind support, using taxpayer funds allocated to the Department, to benefit a range of ex-service support organisations (ESO).

One of those organisations is the War Widows Guild of Australia NSW Limited (ABN 24083075914), a company limited by guarantee, with deductible gift recipient status (meaning people can make tax deductible donations to this entity).

According to the Charities Commission, for the last reporting period, War Widows Guild of Australia NSW Limited (‘War Widows NSW’) operated at a loss (-$520.799m). It reported total income of $1,318,539 in income from government grants, donations, investment income and other revenues, but predominately from goods or sevices; and $1,839,338 in expenses, of which $962,934 was in employee expenses (which other costs such office rent $163,506, information technology & database expenses $48,495, professional and consulting fees $96,039 and other expenses of $193,065 added to their internal administrative expenses).

I understand the General Counsel of Department of Veterans’ Affairs, BRIG Worswick, has been a Non-Member Director of War Widows Guild of Australia NSW Limited, since 3 February 2017, indicating the strength of the relationship between the Department of Veterans’ Affairs and War Widows Guild of Australia NSW Limited.

I seek the following documents:

a) for the FY2018/2019, a s 17 produced document from your financial management information system (DOLARS I believe it is, or was, called), listing any payments made to War Widows Guild of Australia NSW Limited (‘War Widows NSW’)

b) Any relevant documents created in FY2018/2019 relating to any direct, or in-kind support, provided by the Department of Veterans’ Affairs to War Widows Guild of Australia NSW Limited (‘War Widows NSW’), not otherwise reported in Document A

With respect to documents in category B, the interest is in understand what types of support and assistance the Department of Veterans’ Affairs is providing to War Widows Guild of Australia NSW Limited (‘War Widows NSW’), and the financial costs involved, rather than contractual or otherwise inconsequential information.

If the Department of Veterans’ Affairs wishes, in lieu of providing any pages of irrelevant material, the Department may under s 17 produce a summary document giving these details, so there is no need to review inconsequential information.

Ciao,

Julie

Dear Craig,

As you stated, the s 15(5)(b) due date of this FOI is 18 November 2019.

Under s 15AA of the Freedom of Information Act, I can provide the Department additional time within which to complete this FOI.

In order to receive a high quality response, I have decided to extend the s 15(5)(b) due date under s 15AA, to Tuesday 26 November 2019.

Ciao,

Julie

Dear Jo,

As you will recall, the scope of the FOI as made was:

a) for the FY2018/2019, a s 17 produced document from your financial
management information system (DOLARS I believe it is, or was, called),
listing any payments made to War Widows Guild of Australia NSW Limited
(‘War Widows NSW’)

b) Any relevant documents created in FY2018/2019 relating to any direct,
or in-kind support, provided by the Department of Veterans’ Affairs to War
Widows Guild of Australia NSW Limited (‘War Widows NSW’), not otherwise
reported in Document A. If the Department of Veterans’ Affairs wishes, in lieu of providing any pages of irrelevant material, the Department may under s 17 produce a summary document giving these details, so there is no need to review inconsequential information.

To concisely summarise that, the Department has been asked to produce summary financial data on payments made to, or for the benefit of, War Widows Guild of Australia NSW Limited
(‘War Widows NSW’), with consent for irrelevant information to be redacted. This sort of summary data typically does not attract the sort of material necessary to met the s 26A, s 27 or s 27A thresholds.

Indeed it is surprising that the Department of Veterans’ Affairs (DVA) is seeking to cloak in secrecy its support to an ESO organisation, when details of support to War Widows NSW is often published from time to time in DVA publications and press releases!

As you would be aware, thirty party consultation extensions can only occur where a document caught by the scope of the FOI request would enliven s 26A (documents affecting Commonwealth-State relations), s 27 (documents affecting business information) or s 27A (documents affecting personal privacy), and such third party consultation is to be at the earliest opportunity (not at the end of the s 15(5)(b) statutory deadline).

As the Australian Information Commissioner’s FOI Guidelines for agencies makes explicit “Agencies and ministers are encouraged to build into their FOI process an early and quick assessment of whether an extension may be required”. This is to avoid the association that the agency is ‘gaming the clock’ by intentionally delaying notification until the last minute.

While not exactly last minute, it wasn’t far off, and that should be something kept in mind in future to improve on.

I also note the Commissioner’s own FOI Guidelines state that “Where a third party has review rights in relation to only some of the documents” that an agency or minister should provide the applicant with access to those documents not containing material that may enliven s 26A (documents affecting Commonwealth-State relations), s 27 (documents affecting business information) or s 27A (documents affecting personal privacy).

In this case, your notice has specified s 27 (documents affecting business information) as the basis of the third party consultation and it appears you’ve claimed s 27 applies to all material, including Part A of the scope (which is very unusual).

To enliven s 27, there are three preliminary steps to be met.

Firstly, at least one document in scope must contain contain the business information of a third party that concerns their business, commercial professional or financial affairs; AND

Secondly, the decision maker must have a reasonable belief that:

- the third party might reasonably wish to make a contention to prevent access to Commonwealth documents; AND

- the decision maker reasonably believes the document/documents (or parts thereof) could be exempt under s 47 (trade secrets etc.); or could be conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) [Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest]

Thirdly, in determining that reasonable belief, the decision maker must have regard all to the following matters:

(a) the extent to which the information is well known;

(b) whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information;

(c) the availability of the information from publicly accessible sources;

(d) any other matters that the agency or Minister considers relevant.

It is only then, if all three steps are correctly carried out, that the power to stop the s 15(5)(b) deadline clock is enlivened.

What documents (or part there of) fall within the jurisdiction of s 27 is much narrower than just “business information”. To enliven s 27, the documents must disclose:

- a trade secret; (s 47)

- information that has a commercial value that would or could reasonably be expected to be destroyed or significantly diminished if disclosed; (s 47)

- would or could reasonably be expected to adversely affect that third party in their undertaking of their lawful business, professional, commercial or financial affairs, that would be not in the public interest to disclose; (s 47G)

- would or could reasonably prejudice the future supply of information to the Commonwealth, for the purposes of the administration of a law of the Commonwealth, contrary to the public interest (s 47G)

Given the scope of the FOI, it appears the only ground is a conditional exemption ground under s 47G, in that an alleged reasonable belief is allegedly held by the decision maker, that release of the financial support received by War Widows from the Department could reasonably adversely affect War Widows, contrary to the public interest.

Principles that are relevant in considering the interpretation and application of the expression “would, or could reasonably be expected” show that the words are interpreted according to their ordinary meaning:

“... they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that... [disclosure would reasonably adversely affect War Widows, in a way contrary to the public interest]... It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.... It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 per Gibbs CJ and Mason J).”AG v Cockcroft [1986] FCA 35 at [106,112]

Section 47G requires that disclosure of a document would, or could reasonably be expected to “unreasonably affect” a person adversely in respect of his or her business affairs or an organisation or undertaking in respect of its lawful, business, commercial or financial affairs. The following factors were identified as relevant when considering whether disclosure under the FOI Act would or could reasonably be expected to “unreasonably affect”:

“If it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether a person would be unreasonably affected by the disclosure; the effect, though great, may be reasonable under the circumstances. To give two examples: if the relevant information showed that a business practice or product posed a threat to public safety or involved serious criminality, a judgment might be made that it was not unreasonable to inflict that result though the effect on the person concerned would be serious. Of course, the extent and nature of the effect will always be relevant, often decisive. Whether the effect of the disclosure is unreasonable cannot be assessed without taking into account all relevant factors: see Colakovski v Australian Telecommunications Corp. (1991) 29 FCR 429 at 438, 441.”

Specifically, and relevantly, the issue of financial documents relating to provision of direct and indirect support from the Commonwealth to a person or business, in relation to s 47G, was analysed by the AAT:

“There is a public interest in ensuring that moneys given for a particular purpose are used for that purpose.... There is a public interest in ensuring that the Commonwealth has in place proper reporting requirements so that it can ensure that it can account for the moneys that are given... the Chief Executive of an Agency, including the Department, was required to manage its affairs in a way that promoted the proper use of Commonwealth resources for which he or she was responsible.... By “proper use” was meant “... efficient, effective, economical and ethical use... the public interest in knowing whether public money was accounted for at the appropriate time in the manner required and the public interest in ensuring that public programmes are properly administered, I conclude that any adverse effect that would, or that might reasonably be expected, to follow disclosure of the documents would not be an unreasonable adverse effect... Therefore, I am not satisfied that Documents 1 and 2 are conditionally exempt under s 47G” Bell and Secretary, Department of Health (Freedom of information) [2015] AATA 494

Given the scope of this FOI, which was for statistical/financial information, on the basis of the information provided by the Department in this notice of third party consultation, it would not be possible for a reasonable belief of s 27 enlivenment to formed, as the material in question falls below the bar required to be met (especially as consent was already given to redact any information not relating to said financial data).

As such, please provide additional information as to the basis of your s 27 claim, and please provide a schedule of documents, noting the number of pages for each document (given they are a s 17 document/s, that should be only a couple of pages), and list what number of pages in those documents s 27 is allegedly claimed on.

Again, it is surprising that the Department of Veterans’ Affairs (DVA) is seeking to cloak in secrecy its support to an ESO organisation, when details of support to War Widows NSW is often published from time to time in DVA publications and press releases! Isn’t this something DVA wants to promote, not hide? Is there something unusual or irregular about the support given this year, that has changed past practice of proper financial disclosure? Is it because a senior DVA SES employee also is a paid non-executive board member of War Widows Guild of Australia NSW Limited (‘War Widows NSW’)?

I’m confused as to why the Department of Veterans’ Affairs (DVA) is too embarrassed to give access, and resorts to a flimsy and inappropriate use of s 27, when the scope clearly doesn’t enliven s 27 (because nothing reaches the threshold of s 47 or s 47G, to give rise to a reasonable belief that s 27 applies).

Ciao,

Julie

Dear Jo,

As you have conceded Part A of the FOI does *not* have any material on which you believe a third party would seek to prevent access under ss 27, 47, or 47G, that s 17 document is required to be released by the s 15(5)(b) statutory date.

As the Information Commissioner’s Guidelines state, s 27 should not be used to delay access to documents which do not fall validly under s 27, as this would be outside the jurisdiction of that provision (in other words, where the Department has conceded only some documents fall under third party consultation - as you have - a staged release should be used).

I note you did not identity, as requested, the number of pages involved (and how much of the alleged documents in question you have claimed s 27 on), despite these being requirements to be identified before s 27 can be enlivened (documents within scope must be reviewed first, as if for release, before the preliminaries of s 27 can be satisfied - it cannot be used prospectively, as the reasonable belief must be formed after full review of the documents in question).

I also note you did not answer or provide any basis for your s 27 claim, beyond stating “we consider third party consultations appropriate”. Notably, that is not the statutory test for s 27. It appears you are acting outside the jurisdiction of s 27, having misunderstood (or more likely, misapplied) the test and having failed to satisfy the mandatory procedural requirements to enliven s 27.

I also draw your attention to the following paragraphs of the Information Commissioner’s guidelines:

6.189 The AAT has said, for example, that there is a strong public interest in knowing whether public money was accounted for at the appropriate time and in the manner required; and in ensuring that public programmes are properly administered.

6.190 The AAT has distinguished between ‘truly government documents’ and other business information collected under statutory authority. The first category includes documents that have been created by government or that form part of a flow of correspondence and other documents between the government and business. The AAT concluded that such documents inclined more to arguments favouring scrutiny of government activities when considering whether disclosure would be unreasonable.

Paragraph 6.190 makes clear that these Part B documents, which are Departmental records of financial information (in contrast to documents of War Widows), would be considered ‘truly government documents’, and not ‘business information’ falling within ss 27, 47 or 47G.

Lastly, in regards to your contention about Part B, it must be rejected. As was stated in the original FOI request, and restated to you in my last reply, Part B gave the Department full discretion to redact or summarise via s 17 (given the documents are kept electronically by DVA) documents captured under Part B, to financial details alone.

If irrelevant material to the scope falls within Part B, even if the document contains relevant material, the irrelevant material is redacted within the document (or avoided altogether under a s 17 compilation) - s 27 can not be used to prevent access to an FOI on the basis of material irrelevant to the scope or for which consent to remove has already been given.

Again, it is unclear why the Department of Veterans’ Affairs is seeking to delay and prevent access to details of the financial support (direct and indirect) given to an ESO, that the Department itself routinely mentions in its own PR materials. Unless there was something improper or unethical in the way such monies were given, transparency of accounting for public monies expenditures is an accepted norm in FOI.

Furthermore, it is inexplicable that something that the Department routinely advertises in its own publications (the giving of support to ESOs), is something the Department wishes to hide in FOI. One would think you would want to promote it, unless there was something illegal or improper going on.

Again, given you have not provided any supporting information to your claim of s 27 having being satisfied, the fact you concede that, at least in part, there are documents to which s 27 does not apply (but which you also intend to withhold past the s 15(5)(b) statutory date), and that the material sought is, according to case law, outside the scope of s 27, s 47, and s 47G, it is clear that this FOI will be a deemed refusal if a decision is not provided by the original s 15(5)(b) date and that the Department will have acted beyond its legal jurisdiction in denying access.

Ciao,

Julie

Dear Jo,

Even thought this FOI became a deemed refusal on the 18 November 2019, since the Department rejected the extension of time offered by me under s 15AA, it is good you recognised your original position of refusing access on Part A, which you admitted you did not claim s 27 on, was untenable and incorrect (even if you believe you could continue to refuse access without lawful basis, which would obviously be beyond your jurisdiction to do, so your framing here is incorrect).

A couple of days late on Part A can be excused.

What cannot be excused as yet again you have failed to satisfy s 27, and ignored the clear case law on the jurisdiction of s 27 and its related s 47 & s 47G provisions. You have not enlivened s 27 as a result, and therefore your withholding of Part B is unlawful.

Again, especially as Part B has allowed the Department to present that information in the same format as Part A, it is baffling why such high level financial expenditure data is resisted (unlawfully) from production, under false and unethical unsupported claim of s 27 (given such records are ‘truly government documents’). Why is the Department so scared to provide the normal transparency required to be shown for expenditure of Commonwealth monies, for something that in circumstances outside of fraud or corruption be involved, would be disclosed routinely?

Is it because a senior SES officer of the Department is also a paid Non-Member Director of War Widows Guild of Australia NSW Limited, and there has been something improper or unethical involved in that relationship that those records reveal? You would think the Department would be at pains to show proper corporate governance, especially for financial relationships, has been followed, not to engage in ridiculous pantomime to hide routine financial records.

Ciao,

Julie

Dear Dylan,

Even thought this FOI became a deemed refusal on the 18 November 2019, since the Department rejected the extension of time offered by me under s 15AA, it is again inexcusable that as the released in full Document 2 (Part B response) shows, the Department of Veterans’ Affairs failed to satisfy s 27, and ignored the clear case law on the jurisdiction of s 27 and its related s 47 & s 47G provisions. You did not enlivened s 27 as a result, and as a result the withholding of Part B was unlawful.

Again, especially as in Part B the Department presented that information in the same format as Part A, which it conceded it was not able to lawfully withhold when challenged on it, and acknowledged that in that format no possible claim under s 27 could arise.

The Department was provided additional time to provide a response under s 15AA, which it rejected. If it desired additional time to prepare a response, it should have used that lawful mechanism, it should have not made false and improper use of s 27, which was an unethical abuse of process.

Ciao,

Julie