Had a chance to coffee with P7 TOM and asked about the PAIN analysis of FOI; "not deeply involved" (evil grin) "but a couple of the others have been chipping away for a while now". Picture me sat thoughtful like, he with a half smile and a challenging eyebrow cocked. "Ok" say I "tell me you old bugger". "Not your cup of tea old son" he says, so I gives him 'the look'. "Well" says the oracle with a sigh; "seems some folk have been having problems, the Senate got about 13 truckloads of useless information and had to ask twice, with threats to get to the stuff they knew was there; a lot of the information buried or incorrectly filed". "Other folk, like the ABC were told a fee of AUD $10,000 would apply for the information they wanted, lots of other people get messed about, endless delays, extensions etc". "But, the big ticket issue is the slightly jaundiced application of the exemptions and the spin CASA can get on the regulatory ball".
So that, in a nutshell is the problem the boys are tackling. Where the analysis may best be used was not discussed, but the IC review facility was. It seems that when the hurdles of waiting, extension and fees have been cleared, and the avalanche of reasons and exemptions have been considered; if you are still unable to get the information there are a couple of options. Do what the Senate did and use your parliamentary clout, or you can seek a review.
It seems the IC review has extensive waiting lists, which in its self is interesting. But be warned - a review may not necessarily reverse a decision. All in all, it seems you can spend a lot of time waiting about and still not achieve satisfaction.
Linton Besser
FoI Review.
Quote from Besser and Department of Infrastructure and Transport: "On 1 November 2010, Mr Linton Besser applied to the Department for access to (amongst other documents) all internal audit reports undertaken by the Department during a specified period. Mr Besser added that he was seeking material ‘which examines cases of fraud, corruption or other serious cases of non-compliance or breaches of protocol, by [Department] employees and its contractors and consultants.’ He also requested that ‘any processing costs beyond the preliminary five hours are discounted on the grounds of the public interest’."
And, doing a Sarcs – the words above are a passage from a Besser review, the subject, by the by, is not about acquiring the requested documents, but about how much the information will cost to gain.
The text below presents a fair example of what you may expect when and if you ever decide to have the IC review a departmental decision, affecting your business or career. It begs the question - can the regs only ever be interpreted as all aviators are proven criminals; guilty unless you can prove otherwise. Reference ‘Y’ and Civil Aviation Safety Authority [2013] AICmr 42 (12 April 2013).
Certain operations of agencies exemption (s 47E)
13. Section 47E provides that ‘[a] document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to…(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency’.
14. The long title of the Civil Aviation Act 1998 (as was in force on 3 February 2010) provides that it is ‘[a]n Act to establish a Civil Aviation Safety Authority with functions relating to civil aviation, in particular the safety of civil aviation, and for related purposes’. The Civil Aviation Act 1988 further provides that one of the central functions of CASA is to issue certificates and licences.2
15. Regulation 5.04 of the Civil Aviation Regulations 1988 (as were in force on 3 February 2010) provides that it is a requirement of a flight crew licence (including a commercial pilot licence) that the holder of that licence has a medical certificate that is appropriate to that licence. Regulation 5.04(3) further provides that the appropriate medical certificate for a commercial pilot is a class 1 medical certificate.
16. Table 67.150 to Regulation 67.150 of the Civil Aviation Safety Regulations 1998 (as were in force on 3 February 2010) details the criteria for a class 1 medical certificate, including a mental fitness criterion.
17. Regulation 67.265 of the Civil Aviation Safety Regulations 1998 further provides that the holder of a class 1 medical certificate and a flight crew licence is required to notify CASA of any medically significant condition that he or she may have where the condition would impair his or her ability to do an act authorised by the licence.
18. Regulation 67.230 provides that where CASA has concerns about whether the holder of a medical certificate continues to meet the relevant medical standard, CASA may direct the holder of the certificate to submit to examination by a medical practitioner, specialist psychiatrist or clinical psychologist.
19. In submissions to this office, the applicant argued that ‘…taking an unsolicited “complaint” from the member of the public about their perception of a pilot’s medical condition’ is neither part of CASA’s operations nor of such importance to CASA’s operations that disclosure of the complaint would have a substantial adverse effect on the proper and efficient conduct of these operations.
20. In light of the provisions of the Civil Aviation Regulations 1988 and Civil Aviation Safety Regulations 1998 mentioned above, I am satisfied that it is a function and operation of CASA to both issue licences and medical certificates and investigate possible breaches of such licences and medical certificates, whether at CASA’s initiative or following a complaint from a member of the public. I am also satisfied that it is a particular function of CASA to ensure safety of civil aviation in Australia, including by ensuring that those holding such licences and certificates are medically fit to do so.
21. In this case, I am satisfied that the complaint raised concerns about civil aviation safety by bringing into question whether the applicant had met the medical requirements of their licence.
22. I agree with CASA that disclosure of complaints about possible breaches of licence conditions could discourage others from raising legitimate public safety concerns and therefore impede CASA in both the exercise of its functions and its ability to test and respond to such concerns. I consider that this would impair CASA in the exercise of its particular function relating to the safety of civil aviation.
23. In this case, the complainant provided the information about a possible breach of the applicant’s licence conditions on the understanding that it would be used to investigate any breach but kept confidential. When providing the information to CASA, the complainant requested that the information be treated confidentially and in its acknowledgement of the complainant’s correspondence, CASA confirmed that it would treat the information confidentially.
24. I am satisfied that disclosure, under the FOI Act, of this type of information would affect the willingness of others to make similar safety-related complaints in the future. This would have a substantial adverse effect on the proper and efficient conduct of CASA’s licencing and certification operations as it would be likely to result in safety concerns not being reported to CASA and, therefore, not being investigated by CASA. If potential air safety issues, including those related to pilot licensing and certification, are not considered and, where necessary, remedied by CASA, then CASA would not be able to fulfil its functions in relation to the safety of civil aviation.
25. Accordingly, the documents sought by the applicant are conditionally exempt under s 47E.
26. Because the document sought by the applicant is conditionally exempt under s 47E, it is not necessary for me to consider the application of s 47F (personal privacy exemption). However, I do note that, having examined an unedited copy of the document, it would not be possible to provide an edited copy of the document to the applicant without disclosing the personal information of the complainant.
TOM was right. All a bit too much for my wooden head, but there it is.