Letter to the Commonwealth Ombudsman

Dear Professor John McMillan,

“I complain about: the Attorney-General’s Department’s (AGD) review decision in relation to my FOI request.

I disagree with the decision, regarding my complaint, made by Mr Paul Bluck, Director Legal/Policy of the Commonwealth Ombudsman on 4 December 2007.

In my opinion Mr Bluck’s decision is wrong because on face of the review decision made by the AGD in relation to my FOI request, the reviewer failed to consider 'the implied waiver of privilege' and Mr Bluck did not try to investigate whether the reviewer had considered 'the implied waiver of privilege' or to suggest the AGD to consider 'the implied waiver of privilege' even though he wrote that he had power to do so.

Details

The AGD declared that the two documents in discussion were the only documents in relation to a decision of not intervening. The decision was given to me in April 2006.

The document 2 is a general policy approved by the Attorney-General on 13 September 2005 in relation to intervention. The document 1 is legal advices given by the Australian Government Solicitor to the Attorney-General about the particular intervention.

On face of the review decision made by the AGD, the Attorney-General relied on the two documents because no other legal advices and policies were relevant to the matter, and the reviewer of my FOI request did not consider 'the implied waiver of privilege'. Mr Bluck held it was not clear 'whether the Attorney-General relied solely, partly or not at all on the advice' and 'Any question of whether there has been a waiver is far better considered by the AAT'.

When making his decision Mr Bluck obviously assumed that the Attorney-General did not relied on the two documents at all and that the reviewer of the FOI request considered the 'the implied waiver of privilege' in accordance with the Full Court of the Federal Court’s judgment In Bennett v Australian Customs. In my opinion, his assumptions are baseless, and he should not make decision based on assumptions when he has power and opportunity to request the AGD to clarify his question or doubt.

Therefore my questions are:

1. Whether it is wrong that Mr Bluck made his decision based on his baseless assumptions while he has power and time to investigate his unanswered questions

2. Whether the AGD’s reviewer of my FOI request failed to consider 'the implied waiver of privilege' when making the AGD’s review decision.”

(files below are downloadable as .doc files)

My complaint to the Ombudsman of 13/08/07
My Email to the Director of 22/11/07 and 04/12/07
Emails from the Director Legal/Policy of the Commonwealth Ombudsman of 12/11/07, 26/11/07 and 07/12/07