Wednesday, 20 July 2016

AusPost outsources IT, claims it is no longer accountable to citizens


https://www.crikey.com.au/2016/07/14/australia-post-outsourcing-avoid-scrutiny/

Australia Post says it can't possibly respond to Freedom of Information requests anymore, it's all too hard. The Information Commissioner politely disagrees. 

It turns out “It’s too much effort, and we outsourced our IT” is not a valid excuse for government agencies to attempt to avoid transparency and scrutiny.

Outsourcing is often seen in government as a means to cut down on costs, but it is also used as a means to avoid transparency in government.

We’ve seen before that by using commercial companies to do your work for you, it is possible to evade Australia’s freedom of information scheme through a number of confidentiality clauses.

But blaming outsourcing entirely for your inability to comply with an FOI request is a new one.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

So on a searching expedition we went - and this is what came up - MORE buck passing bullshit and lying from Australia Post and it's shitty legal dep:


Adding to this - the source material from the Information Commissioner.

Patrick Healy and Australia Post [2016] AICmr 23 (20 April 2016)

https://www.oaic.gov.au/freedom-of-information/foi-decisions/ic-review-decisions/2016-aicmr-23

http://www.austlii.edu.au/au/cases/cth/AICmr/2016/23.html

Then to S41. (if you want to scroll down - it's highlighted)

And since Australia Post has 1/10 as many Closed Circuit Tele-Vision cameras as thieving arseholes in it's management and on the payroll - these excuses from the lying retards in it's legal department don't add up.....

Australian Information Commissioner

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Patrick Healy and Australia Post [2016] AICmr 23 (20 April 2016)

Last Updated: 27 April 2016

Patrick Healy and Australia Post [2016] AICmr 23 (20 April 2016)
Decision and reasons for decision of
Acting Australian Information Commissioner, Timothy Pilgrim
Applicant:
Patrick Healy
Respondent:
Australia Post
Decision date:
20 April 2016
Application number:
MR15/00164
Catchwords:
Freedom of Information — Whether disclosure of personal information is unreasonable — Whether contrary to public interest to release conditionally exempt documents — Whether reasonably practicable to prepare edited copy of video — (CTH) Freedom of Information Act 1982 ss 11A, 22, 47F
Decision
  1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of Australia Post of 7 May 2015. I substitute my decision to decide that:
    • document 1 is not exempt
    • material in document 2 that the Department found to be conditionally exempt under s 47F of the FOI Act is conditionally exempt under that provision and giving the applicant access to this material would, on balance, be contrary to the public interest, and
    • Australia Post must now give the applicant an unedited copy of document 1, and a copy of document 2 edited under s 22 of the FOI Act to delete only the exempt material.
Scope of IC review
  1. On 27 March 2015, the applicant applied to Australia Post for access under the FOI Act to documents relating to an incident at an Australia Post facility on 16 May 2014:
I wish to obtain a copy of the entire video records from the surveillance cameras that were in operation at that time at the public counter from 12.40pm until 1.25pm. There were at least two recordings.
  1. On 7 May 2015, Australia Post identified two documents as within the scope of the request and decided that the documents were exempt in full under s 47F (personal privacy conditional exemption) of the FOI Act.
  2. On 9 June 2015, the applicant sought IC review of the Department’s decision under s 54L of the FOI Act.
  3. In this IC review, I have considered:
    • whether the documents are conditionally exempt under s 47F of the FOI Act, and whether disclosure would, on balance, be contrary to the public interest
    • whether pixilation of personal information in a video is an ‘edited copy’ of the document, modified by deletions, under s 22(1)(b) of the FOI Act, and
    • if a document is conditionally exempt in part, whether it is reasonably practicable for the agency to prepare an edited copy of the document under s 22(1)(c) of the FOI Act.
  4. In making my decision I have had regard to the following:
    • the Department’s decision and reasons for decision of 7 May 2015
    • the application for IC review
    • the documents at issue, specifically the two documents to which access was refused
    • the FOI Act, in particular ss 11A(5), 22 and 47F
    • the Guidelines under s 93A to which agencies must have regard in performing a function or exercising a power under the FOI Act, in particular paragraphs [6.113] – [6.156], and
    • the parties’ submissions.
Personal privacy conditional exemption (s 47F)
7. As discussed in the Guidelines and in IC review cases,[1] the main requirements of this conditional public interest exemption are that a document contains ‘personal information’; disclosure in response to the applicant’s FOI request would be ‘unreasonable’ (s 47F(1)); and it would be ‘contrary to the public interest’ to release the material at the time of the decision (s 11A(5)).
  1. The documents are two digital videos of closed circuit television (CCTV) footage. Both videos are of seven minutes and one second duration and capture the same scene from different angles. One shows a customer counter at the storefront from the street (document 1) and the other shows the same counter from inside the premises (document 2).[2]
  2. In relation to the first requirement, in the recent IC review decision of Alex Cuthbertson and Department of Immigration and Border Protection [2016] AICmr 18, I considered the definition of personal information under the FOI Act and the requirement that an individual be ‘reasonably identifiable’.
  3. Under s 4(1) of the FOI Act, personal information has the same meaning as in the Privacy Act 1988 (Cth)(Privacy Act):
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.[3]
  1. The Australian Privacy Principles (APP) Guidelines under s 28(1)(a) of the Privacy Act explain at [B.93]:
Whether a person is ‘reasonably identifiable’ is an objective test that has practical regard to the context in which the issue arises. Even though it may be technically possible to identify an individual from information, if doing so is so impractical that there is almost no likelihood of it occurring, the information would not generally be regarded as ‘personal information’.
  1. Australia Post acknowledged that the individuals shown in the footage, other than staff members at the facility, were not consulted about the release of the footage because their identities were unknown:
Customers whose personal information is disclosed cannot be identified and accordingly cannot be consulted as set out in section 27 of the Act for the purpose of determining whether or not they consent or object to the disclosure of their personal information.
  1. In relation to the second requirement, I have had regard to the matters summarised in ‘FG’ and National Archives of Australia at [47], that may be relevant to whether disclosure of personal information would be unreasonable under s 47F(2) of the FOI Act.
Document 1
  1. Australia Post contends that document 1, the footage from the street, contains the personal information of employees and customers at the facility.
  2. I have examined the footage and I find that only the applicant is reasonably identifiable. The applicant appears in the foreground and his face is clearly shown. The other individuals, including the staff member, are not reasonably identifiable due to the angle of the camera and the quality of the footage. The images of individuals other than the applicant do not constitute personal information.
  3. In ‘FG’ and National Archives of Australia at [44], the then Australian Information Commissioner decided that in determining whether disclosure of personal information is unreasonable under s 47F(1):
...an agency may take into account any submission the FOI applicant chooses to make in support of their application as to their reasons for seeking access and their intended or likely use and dissemination of the information. An agency may also take into account that the FOI Act does not limit or restrain further dissemination of that information by the applicant. The agency may decide what weight to give to those and other considerations, including any view expressed by the person to whom the information relates.
  1. I have had regard to the applicant’s submissions, including as to his intended use of the footage. The applicant submits:
The incident occurred in a public place...There is a plethora of video cameras in shops, streets and on hand-held devices. The incidental presence of a bystander in CCTV footage taken in a public place does not create a burden that precludes a video from being released where that video is evidence, the disclosure of which was ordered by a Magistrate...This FOI request seeks to ascertain the truth, not to publicize. Reference to S47F refers to conditional exemption, not a mandated exemption.
  1. I do not find that the personal information of the applicant is unreasonable to disclose in these circumstances, particularly given that the applicant is seeking his own personal information. Given my findings that the images of other individuals are not personal information, it is not necessary to consider whether disclosure would be unreasonable in relation to that material.
Document 2
  1. Australia Post contends that document 2, the footage from inside the premises, contains the personal information of employees and customers at the facility.
  2. The footage only clearly shows the faces of the applicant, the four staff members and one member of the public. I am satisfied that the footage contains personal information of:
    • the four employees
    • the male customer who first appears in the footage but only for the first 15 seconds, and
    • the applicant.
  3. Other individuals are not reasonably identifiable due to the distance from the camera and the quality of the footage. Those images are not personal information under s 47F of the FOI Act.
  4. Australia Post submitted that disclosure of the personal information would be unreasonable given that:
    • The staff members have expressed opposition to the disclosure of the information
    • The release of the document would not promote the cause of representative democracy or scrutiny of any decision made by Australia Post, and
    • The FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act.
  5. Australia Post also submits:
This was security footage...Its release would disclose the existence of this security measure and the location of the security cameras can be ascertained by viewing the footage. Once a document is released, its further disclosure cannot be controlled. The identification of Australia Post's security installations is a matter of commercial sensitivity and affects the safety of employees and members of the public, as well as the postal items entrusted to it. For this reason also, Australia Post objects to release of the CCTV footage.
  1. Those details could not be considered personal information. That submission was not framed with any other exemption or the public interest test under s 11A(5) under the FOI Act.
  2. The applicant submits that the staff of the facility had sworn affidavits in other legal proceeds relating to the incident and had ‘identified themselves’.
  3. The applicant further submits that he was provided a copy of the footage during court proceedings which had not been pixelated or blurred to remove personal information, although he submitted the version he received had been otherwise edited. The applicant was invited to provide a copy of the footage to the OAIC, which may have assisted in considering the exemption under s 47F but declined to do so within the timeframes set down.
  4. I find the release of document 2 would be an unreasonable disclosure of personal information, particularly because of the kind of incident depicted and the nature of the personal information.
  5. In finding that the personal information is conditionally exempt, I am therefore required to consider whether it would be contrary to the public interest to give access at this time.
  6. The applicant provided submissions as to the relationship of the documents to other legal proceedings and the procedural fairness he submitted was owed to him in relation to that matter. His submissions also referred to the right to liberty, rule of evidence and the right to a fair trial. The applicant explained his motivations for seeking the footage as part of a ‘verification process’ to compare footage tendered in court and the CCTV footage requested.
  7. The applicant’s submissions raised issues which are beyond this scope of this IC review however I accept that the applicant has strong personal reasons for seeking access to the material. As with the question of whether it would be unreasonable to disclose the personal information, I may take into account the applicant’s submissions in support of their application as to their reasons for seeking access, in deciding whether release of the document is contrary to the public interest for the purposes of 11A(5) of the FOI Act.[4]
  8. I have balanced the public interest factors favouring disclosure – disclosure would promote the objects of the FOI Act and allow a person to access his or her own personal information – against the public interest factors against disclosure:
    • disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, and
    • disclosure could reasonably be expected to prejudice the management function of an agency.
  9. In weighing these factors in relation to the personal information of individuals other than the applicant, I give greater weight to the factors against disclosure, in particular the importance of protecting the privacy of the individuals. I am satisfied that giving access to that material at this time would be contrary to the public interest.
  10. In weighing these factors in relation to the personal information of the applicant, I give greater weight to the factors in favour of disclosure, particularly allowing the applicant access to his personal information. I am not satisfied that giving access to that material at this time would be contrary to the public interest.
Access to edited copies (s 22)
  1. Section 22(2) of the FOI Act requires an agency to give an applicant access to an edited copy of a document, with the exempt matter deleted, if it is reasonably practicable for the agency to prepare the edited copy, having regard to:
    • the nature and extent of the modification (s 22(1)(c)(i)), and
    • the resources available to modify the document (s 22(1)(c)(ii)).
  2. Previous IC review decisions have recognised faces in CCTV footage as personal information but not individuals’ bodies[5] and I accept that if the faces were pixelated or sufficiently blurred, the document would no longer contain the personal information which I have found to be exempt.
  3. Australia post submits:
    • pixelating a visual image is not a ‘deletion’ under s 22(1)(b) of the FOI Act but ‘amounts to a substantial alteration of a document such that a new document is created, which was not previously in existence, and which is not therefore the document requested in the application’.
    • ‘“Deletion” of the third party images in this case would result in a meaningless document - in fact, it is likely that no document would remain.’
  4. I do not accept these submissions. The wording in s 22 clearly contemplates a new document being created with the exempt material deleted: ‘an edited copy’. It is not essential that personal information be pixelated; it could also be blurred or blacked out. Any of these methods is a deletion of part of a moving image within the ordinary meaning of the word, provided that the personal information is removed.
  5. I have examined the document and I find that obscuring the faces depicted would not result in a meaningless document.
39. In relation to pixilation of footage, Australia Post submissions referenced two decisions made under the Victorian Freedom of Information Act 1982[6]. I am satisfied that the law about the equivalent exemption concerning personal information is sufficiently different in each jurisdiction that those cases are of limited relevance.
  1. On whether it would be reasonably practicable to edit the footage in these circumstances, the applicant submits:
At the time of the incident commencing, there were no members of the public present. A few members of the public did come along (perhaps 3-4) later. I do not consider that it would be expensive and I consider that it would be reasonably practical to blur the image of these few persons...Australia Post can easily and inexpensively blur the few images of non-participants.
  1. Australia Post submits it would not be reasonably practical to prepare the edited copy because:
• Australia Post has outsourced its IT function:

• Australia Post cannot identify an employee with relevant skills and knowledge to undertake the work;

• Editing of CCTV footage is not the core business of Australia Post

To purchase the software and train a member of staff to undertake the work would amount to an unreasonable diversion of the resources of the agency for the purposes of section 24AA(1)(a)(i);

An agency should not be compelled to purchase software or equipment and employ a suitably qualified and experienced person to satisfy a request under the FOI Act where there is otherwise no utility in possessing that software or equipment or employing that person - such is an abuse of taxpayer funds.
  1. Australia Post provided an estimate from one external provider that the cost of undertaking the editing would be $4000 and take 3-4 days. The quote is based on editing two videos and pixilation of the faces of the ten individuals depicted in the footage, instead of the one video that contains exempt material and personal information of only five individuals. The quote also states, ‘it looks like we would have to edit the footage almost frame by frame given the amount of people in it’ and ‘the video sent is actually a program not a video file which means we can’t edit it.’
  2. I accept that document 2 depicts more individuals and personal information than the footage in the decision in ‘BZ’ and Department of Immigration and Border Protection and the editing process would be more involved, even though the footage is the same length.
  3. A staff member at the OAIC found that the footage provided could be saved into editable files, which were provided to Australia Post. It was estimated that the footage would take less than a day to edit on software that costs less than $100 per user and requires no specialist expertise.
  4. The Guidelines state at [3.101]:
...it is implicit in the objectives of the FOI Act that agencies must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures.
  1. I have considered the nature and extent of the modifications and the submissions as to the resources available to modify the document and I find that it would be reasonably practicable for Australia Post to prepare the edited copy of document 2.


Timothy Pilgrim
Acting Australian Information Commissioner
20 April 2016
Review rights
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.
An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. Further information is available on the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.
[1] Generally, see Guidelines [6.113]-[6.156]; ]; Alex Cuthbertson and Department of Immigration and Border Protection [2016] AICmr 20; ‘IF’ and Department of Immigration and Border Protection [2016] AICmr 13; ‘IA’ and Australian Securities and Investments Commission [2016] AICmr 8; ‘HZ’ and Australian Securities and Investments Commission [2016] AICmr 7; Paul Cleary and Special Broadcasting Service [2016] AICmr 2 and ‘FG’ and National Archives of Australia [2015] AICmr 26
[2] Australia Post did not label the two documents in the decision of 7 May 2015. I have decided to do so to set out my findings in this decision.
[3] Subsection 6(1), Privacy Act
[4] ‘FG’ and National Archives of Australia at [44]
[5] Kelvin Bissett and Department of Human Services [2015] AICmr 10 and ‘BZ’ and Department of Immigration and Border Protection [2014] AICmr 55
[6] Rogers v Chief Commissioner of Police (General) [2009] VCAT 2526 and Lonigro v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1003








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