Monday, January 30, 2017

Yet another plea to the Commonwealth Ombudsman to deal with facts; not allegations!

David Baragry
Investigation Officer, Operations North
Commonwealth Ombudsman

30th Jan 2017

Dear Mr Baragry

In response to your email to me of 25th Jan

As you will be aware by now, the key question I have been asking of Screen Australia, since 2010, is to be provided with evidence in support of intimidating statements I have allegedly made in correspondence with that body; of comments/statement that place SA staff at risk.

I have maintained, since Dec 2010, that no evidence of intimidation, harassment or placing SA staff members exists. It would have been easy for Screen Australia, at any point in the past 6 years, to prove me a liar by presenting me with examples from my correspondence of my being guilty as charged. Screen Australia has declined to do so.

It would have likewise been easy, this past 6 years, for the Commonwealth Ombudsman to ask Screen Australia for this evidence and, in ratifying (providing the imprimatur of its approval for) Screen Australia’s ban, sharing this evidence with me. As I made clear back in 2012, if I was (and am) guilty as charged I deserve to be banned. No filmmaker should be intimidating and/or placing SA staff at risk.

Why has Screen Australia not provided either myself or the Ombudsman with the evidence that would, in mid-2012, have brought this dispute to a hasty conclusion? Because, quite simply, there is no evidence. 

More importantly in the current context, why has the Commonwealth Ombudsman, for six years now, steadfastly refused to ask Screen Australia for evidence? Why is it not a matter of concern to the Ombudsman that Screen Australia can (and does) refuse to process FOI requests from me that relate to the acquisition of evidence of my alleged offences?

My latest FOI  request related to the reason given to Kent Purvis for the latest ban on me (May 2016).  Screen Australia’s FOI Officer has not, as promised, provided me with a response by 28th Jan. (See my letter to Jane Supit of this morning). This is par for the course with Screen Australia. From the outset SA has been as obstructive as possible in acceding to my FOI requests. The most extreme instance of this being when, after many requests for evidence of my having intimidated and placed at risk members of Screen Australia’s staff, I was provided with copies of pretty well all my correspondence with Screen Australia for the previous two years. (See attached documents).

Parts of my correspondence were highlighted but I was given no clue as to which parts, in the view of Screen Australia, were ‘intimidating’ or which placed staff at risk. The only clue I have ever been provided with was Fiona Cameron’s comment that she “felt intimidated.” In Ms Cameron’s view her ‘feeling’ intimidated was sufficient to warrant the ban placed on me. Shortly after making this comment to me in the foyer of Screen Australia, Ms Cameron called the police to have me arrested for ‘trespassing’. I felt a little intimidated!

When I asked Screen Australia’s FOI officer at the time for actual evidence of ‘intimidation’ and placing ‘at risk’ Nick Coyle wrote back to me on 30th August as follows:

“I would first like to address your letter of 20 August 2012, in which you request three examples from your correspondence already provided  to you in response to an earlier request for documents under the Freedom of Information Act 1982 (FOI Act) with relevant sentences, phrases or words highlighted (to indicate where you have intimidated or placed Screen Australia’s staff at risk.) It is our view that this request goes beyond the scope of the FOI Act and is not a valid FOI request.”

This is akin, in a court of law, to the Prosecutor providing a box filled with ‘evidence’ to the court and saying to the Defense, “The evidence is in here. It is up to you to find it.”

Is it the view of the Commonwealth Ombudsman that asking for evidence of an offence (intimidation and placing at risk) “goes beyond the scope of the FOI Act” goes beyond the scope of the FOI Act?

Four years later, on 15th June 2016 Graeme Mason, Chief Executive of Screen Australia applied the following logic to my request, yet again, for evidence that I had intimidated, harassed and placed at risk members of Screen Australia’s staff:

Freedom of information requests

I refer to your recent emails and letters to Screen Australia dated 18 and 23 May 2016, with requests for access to information under the Freedom of Information Act 1982 (FOI Act).
You have asked for us to give you examples of your correspondence prior to 9 May 2012 in which you intimidated and placed at risk members of Screen Australia staff.

These recent requests for information all relate to matters that have been comprehensively dealt with by Screen Australia and that the information has already been requested and provided to you on other occasions, other than information that is exempt from disclosure. Accordingly Screen Australia will not respond to repeated FOI requests that you may make in the future in relation to the same information.

I have been trying to find out how, in accordance with the FOI Act of 1982, Graeme Mason can simply decide that SA will not longer process FOI requests from me?

Your colleague, Kent Purvis, made it clear to me some months ago that the Commonwealth Ombudsman cannot investigate a matter that is before the courts. Since then, and now, I am held captive by the Ombudsman’s schedule. It took Kent Purvis 7 months to arrive at his decision; seven months that I held off commencing legal action in hopes of being provided with evidence of my alleged offences.

If your review takes 7 months it will be July before I can commence legal action that has, as its express purpose, the acquisition of evidence of my alleged offenses. This evidence could be provided to me, at no expense, by yourself. If you find such evidence in my correspondence (and Screen Australia should be easily able to direct you to it) you could, in appropriate language, write to me along these lines:

“It is the opinion of the Ombudsman that the following statements made by yourself in correspondence were intimidating in nature. (quote statements). It is our opinion also that the following statements could be construed, my Screen Australia, to be evidence that meeting with you would place staff at risk. (quote statements). In relation to Screen Australia’s assertion that its May 2016 ban is warranted by the assertion that you are ‘unreasonable’, the Ombudsman believes that the following comments, made in correspondence and/or your blog, are indeed ‘unreasonable’.”

In the event that the Commonwealth Ombudsman’s review, conducted by yourself, yet again fails to provide me with evidence that I have ever intimidated or placed at risk members of Screen Australia staff, that I have been so ‘unreasonable’ as to warrant the termination of my career, I will be left with no option but to pursue this matter in the courts. This has been an option for me for 5 years now but one that I would prefer not to pursue for financial reasons.

The lifting of the official ban on me is not longer a primary concern for me. The damage that has been done cannot be undone. I have, effectively, lost 5 years of my filmmaking life. (The cost to me, in terms of income, is at least $300,000) These years cannot be returned to me. All I can hope for now, and what I will keep fighting for (in court if need be) is to be cleared of the charge that I intimidated or placed anyone within Screen Australia. As for my being ‘unreasonable’, whilst I am keen to be provided with evidence of my ‘unreasonableness’, I think it absurd that the Commonwealth Ombudsman should believe that ‘unreasonableness’ is a valid reason to ban a filmmaker and terminate his career!

best wishes

James Ricketson

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