Essendon AFL Drug Saga

13. EXAMPLES OF FOI REQUESTS WITH INADEQUATE ASADA/SIA RESPONSES

  1. Terms of Reference for the joint ASADA/AFL Investigation

    On 3 August 2015, I made a Freedom of Information (FOI) request to ASADA for the following documents

    i. The Terms of Reference for the joint ASADA/AFL investigation (Operation Cobia) into possible anti-doping rule violations by Essendon Football Club;

    ii. All communication (letters, emails, SMSs, telephone notes) between ASADA and the AFL, which refer to creating / determining the Terms of Reference;

    On 28 August 2015, ASADA’s National Manager Operations (A/g) Michelle Heins informed me that “No documents were found to satisfy your FOI Request”.

    It is incomprehensible that a government agency could legitimately conduct an investigation without having established a formal Terms of Reference. It is beyond belief that there isn’t a single note, email, piece of paper or SMS referring to the rules or protocols for conducting the investigation.

    The absence of a Terms of Reference and/or rules or protocols for conducting such an investigation indicates either intentional impropriety, or that neither ASADA nor the AFL was qualified to conduct the investigation.

    Response by me to ASADA rejecting an FOI request made on 26 June 2015

    “I am in total shock. My understanding is that on 19 August 2015 (54 days later) you rejected my first FOI request made on 26 June 2015 because it covered in excess of 17,500 pages.

    Now, having refined my FOI request on 21 August 2015, you are able to tell me four days later that you have rejected my request because not one of the 17,500 pages fitted my refined request.

    Just so I am clear, Mr Trevor Burgess has not been able to find a single piece of paper in which Ben McDevitt or his staff communicated with WADA between 31 March 2015 and 26 June 2015 about WADA’s appeal against the 34 Essendon players. There was not even a diary note resulting from a telephone call from Ben McDevitt or his staff to WADA within that period. Furthermore, you are telling me that Ben McDevitt did not take any notes while in Canada and did not file a report after his visit to Canada to see WADA.”

    Could I be bold enough to ask why there isn’t a note of any description about McDevitt agreeing to spend up to $130,000 on WADA’s appeal? I am also stagged that there has been no communication between McDevitt and Sports Minister Ley on the subject.

  2. ASADA Reference FOI 16:15/17:31: June 22, 2016

    For a reason that I still do not understand, the 22 June 2016 FOI request started again in August 2017 and became FOI 17:31. There were two elements to the FOI 16:15/17:31 request:

    Request 1: Presentation of case material by ASADA – documents, notes, presentation slides used by ASADA Staffer 1 and ASADA Staffer 2 at the Anti-Doping Rule Violation (ADRVP) meeting on 3 November 2014. This document labelled ‘Notes for ADRVP meeting’, totalled nine pages. It should have been released within 30 days of my application.

    Request 2: Documents, notes, emails, letters and diary entries by ASADA Staffer 1 and ASADA Staffer 2 pertaining to their 3 November 2014 meeting with the ADRVP. I accept that ASADA needed time extensions to assess these documents.

    On 2 September 2016, ASADA refused me access to the vast majority of requested documents. The failure to release the presentation documents ‘Notes for ADRVP meeting’ (Request 1 above) prevented the players from exposing ASADA’s horrendous misrepresentations. Consequently, the refusal contributed to the severe mental damage to the players and support staff (one attempted suicide and another turned to hard drugs); irreparable damage to the players’ reputations; and, cost the players and club millions of dollars.

    I made repeated requests to ASADA and the OAIC for the ‘Notes for ADRVP meeting’ document and the CEO Recommendation Show Cause Pack but was refused for a variety of spurious reasons. Inter alia, ASADA implied or stated on four occasions that the ‘CEO Recommendation Show Cause Pack’ that I sought didn’t exist:

    i. 2 September 2016, ASADA informed me that 13 documents fitted the scope of my FOI 16:15 request. Incomprehensibly, ASADA did not include the ‘CEO Recommendation Show Cause Pack’ in the scope. (T37 documents lodged by the applicant – T19 pages 40-44

    ii. 22 May 2017, ASADA Staffer 3 said: “[ASADA CEO} Mr McDevitt was out of the country before, during and after the 3 November 2014 meeting on business. He did not correspond in any way with the ADRVP members.” Clearly, this was a disingenuous response designed to imply there was no such document.

    iii. 23 May 2017, OAIC’s Employer 1 – Additional Section 37 documents lodged by the applicant (page 85) said: “I have received ASADA’s submissions to your revised scope. Point ii, ‘no further documents found for request for letters, memos, texts, emails that [ASADA CEO] McDevitt sent to the ADRVP members before and after the 3 November 2014 meeting. [Point] iii ‘pages from each player’s file that ASADA spoke to. No such documents.’

    iv. At 2:36 PM, on 4 August 2017, OAIC Employer 1 (Section 37 documents Part 1 – page 86), informed me that ASADA informed him: “Noting this document [CEO Recommendation Show Cause Pack’] was not provided to the ADRVP. The ASADA CEO does not make recommendations to the ADRVP).”

    On 17 September 2017, ASADA eventually acknowledged that the CEO Recommendation Show Cause Pack document existed, but, incomprehensibly, claimed that it would be in contempt of court or parliament to release the document.

    On 2 November 2018, 863 days after the original FOI request, ASADA gave me a severely redacted copy of the ‘CEO Recommendation Show Cause Pack’ that proved that it not only existed but also proved that it wasn’t in contempt of court to release it. About 80 of the 97 pages were redacted, including 14 items in the Contents Page. See contents page version 1 and version 2. The changes from redactions to unredacted are clarified in the table on page 12.




    Complaints by me to the Commonwealth Information Commissioner, which involved an exchange of 73 emails in a 12 months period, resulted in ASADA releasing what I call Version 2 of the document on 25 August 2021. This was 1,859 days after the original request. ASADA admitted that it made over 150 mistakes when it released Version 1. This was irrefutable proof that ASADA was involved in a corrupt cover-up of an unprecedented magnitude.

    The unprecedented changes (redacted to un-redacted), begs the questions:

    i. Did shortcomings in governance enable ASADA/SIA to withhold damaging information to it that would prove it changed evidence and fabricated evidence at the 3 November 2014 ADRVP meeting?


    ii. Was the ASADA ‘redaction assessor’ incompetent or corrupt?

    iii. If the assessor was incompetent or was being untruthful, how can anyone rely on the veracity of the redactions in the other documents?

    To repeat, on 22 June 2016, my FOI request, inter alia, included: “Documents, notes, emails, letters and diary entries by ASADA Staffer 1 and ASADA Staffer 2 pertaining to their 3 November 2014 meeting with the ADRVP.”

    Mr Allan Hird made a FOI request (FOI 21-4) for the same document (Notes for ADRVP meeting’) I had requested on 22 June 2016. He received the document on 18 October 2021, five years after my request had been rejected.
  3. ASADA reference FOI 16:16 – August 2016

    During his appearance before the Senate estimates hearing on 3 March 2016, ASADA CEO Ben McDevitt said: ‘There were over 100 text messages that unveiled a plan to source thymosin Beta-4 for the purpose of doping the Essendon team.’ I made an FOI request for every one of the text messages that Mr McDevitt was referring to. On 2 September 2016 ASADA informed me that a practical refusal existed and the documents are being refused to be release under s 24 of the FOI Act. After much hassling, ASADA subsequently informed me that no such text [from Ben McDevitt] existed.

  4. ASADA reference 16:17 – July 1, 2016

    During his appearance before the Senate Estimates hearing on 3 March 2016, ASADA CEO Ben McDevitt said: “There were over 100 text messages that unveiled a plan to source Thymosin Beta-4 for the purpose of doping the Essendon team.” I require every one of the text messages that Mr McDevitt was referring to.”

    I had been given the ASADA table with the content of 16,884 texts that had been collated into one document and knew no such text existed, let alone over 100 such texts.

    On 29 July 2016, ASADA, inter alia, I made a request to the Office of the Australian information Commissioner for an extension of two months until 1 November 2016. In the letter to the OAIC, ASADA, inter alia, said: “Our preliminary searches have indicated that the number of documents that would have to be identified and considered to determine whether they are in the scope of this request that exceeds 7000 documents.”

    ASADA’s response and request was inept and untrue. In his appearance at the Senate Estimates Committee, Mr McDevitt specified texts by Dank. By this time, ASADA had produced a table of every text by Dank and other interviewees. There were over 7000 Dank texts and 16,800 texts in total. The entire content of every text was included in the table of texts. It would have taken ASADA about 10 seconds to do a word search for ‘doping the Essendon team’.

  5. ASADA reference FOI 19:01 – January 1, 2019

    On 1 January 2019, I made a FOI request for: “Sentences/Clauses from the ‘CEO Recommendation Show Cause Pack’ that contained the word Thymomodulin”.

    ASADA identified eight documents as being within the scope of my request ASADA refused me access to all eight documents in full, despite the fact that

    i. Thymomodulin is a permitted substance. Newspapers published the fact that Thymomodulin was compounded by Nima Alavi at his Como Compounding Pharmacy.

    ii. The Como Compounding Pharmaceutical website promotes Thymomodulin

    iii. ASADA claimed that neither Stephen Dank nor Essendon ever took possession of Thymomodulin, which means the substance is not confidential information of any player.

    iv. Section 45 states that: “To found an action for breach of confidence five criteria must be satisfied (met). SIA has not made a case that any of the five criteria apply, let alone all five, to any of the eight documents.”

    v. Thymomodulin is a permitted substance.

    vi. The Como Compounding website promotes Thymomodulin

    vii. ASADA claimed that neither Stephen Dank nor Essendon ever took possession of Thymomodulin, which means the substance is not confidential information of any player.

    viii. ASADA created a file labelled ‘Player Summaries’. It contained a summary of the key comments made by each of the 34 players. The document contained 194 pages. Thymomodulin wasn’t mentioned once.

    It is incomprehensible that ASADA-SIA not only fully redacted all eight documents, but was non-sensical that under cross-examination, SIA’s witness at the AAT 6-7 December 2021 hearing defended the decision on the grounds that Thymomodulin was provided in confidence.
  6. ASADA reference FOI 19:22 – July 24, 2019

    Mrs Susan Little made an FOI request for:

    i. Correspondence from the ASADA CEO to ADRVP members for each Disclosure Notice he issued during the Essendon saga

    ii. Correspondence from the ADRVP that includes three ADRVP members signatures giving permission for the [ASADA] CEO to issue each Disclosure Notice

    A number of unnecessary, in my view, emails were exchanged until April 2020 when ASADA said: “The delay was compounded by the complexity of the request and historical nature of the documents sought, volume of material and staff movements.” This was nonsense.

    On April 21, 2020, ASADA contacted Mrs Little indicating that the scope of the request captured a significant volume of material and invited her to revise the request to make it more manageable.

    On May 1, 2020, a frustrated Mrs Little appointed me (Bruce Francis) as her agent

    On May 25, 2020, ASADA, under the heading: ‘Why I intend to refuse your request’ said: “In deciding whether a practical refusal exists, the agency must have regard to the resources that would have to be used for the following activities specified in section 24AA(2) of the FOI Act.”

    A number of unnecessary, in my view, emails were exchanged until 10 March 2021 when agreement was reached that the request was:

    i. Part 1: Correspondence from ASADA CEO to ADRVP members requesting permission to issue Disclosure Notices to Eagle Services (Texas USA) and Nick McKenzie from the Age

    ii. Part 2: Correspondence from the ADRVP that includes three ADRVP members signatures giving permission for the ASADA CEO to issue Disclosure Notices to Eagle Services (Texas USA); Nick McKenzie and Mimotopes.



    ASADA refused to release this document on the grounds of privacy for 1,341 days. After spending $143,719.43 with the Australian Government Solicitors Office fighting its, and other documents release, the AAT ordered its release.

    ASADA proffered the following reasons for the delay in assessing the request:

    • Identifying, locating or collating documents within the filing system of the agency;

    • Examining the documents;

    • Deciding whether to grant, refuse or defer access;

    • Consulting with other parties;

    • Redacting exempt material from the documents; and,

    • Notifying a decision to the applicant.

    On June 28 2021, the OAIC granted the agency an extension of time in which to provide a response to the OAIC Review until 9 August 2021 so that the agency could consult with third parties.

    On August 6, 2021, Sport Integrity Australia (the replacement name for ASADA), inter alia, informed me that the decision page signed by ADRVP members giving ASADA permission to issue a Disclosure Notice to Nick McKenzie was “exempt in full”, on the grounds it was information subject to secrecy provisions, s38. Sport Integrity Australia claimed that the one-page document relates to the affairs of a person (namely Nick McKenzie). As can be seen from the following example, the document doesn’t provide any information about the person. All it contained were two boxes that required a tick in either the “I agree box or I disagree box.

    On 28 August 2023, which was 1341 days after the initial FOI request, the AAT ordered the release of the “I agree, I disagree” document. The Australian Government Solicitors Office charged SIA $143,719.63 to represent it against me in the AAT. As the matter involved three FOIs over a number of years, experts estimated that it cost SIA internally another $400,000.

  7. ASADA FOI number not given – June 26, 2015

    Documents requested: All communication between ASADA and WADA between 31 March 2015 and 20 June 2015.

    ASADA refused the request on the grounds that 17,500 pages met the criteria.

    I refined my request for “communications between [ASADA CEO] Mr [Ben] McDevitt and WADA for the same period.” ASADA informed me that not a single piece of paper met the criteria. Given Mr McDevitt had spent two weeks in Canada at WADA’s expense, and given Mr McDevitt had agreed to spend $130,000 on WADA’s prosecution [of the players], I didn’t believe that there was no communication between Mr McDevitt and WADA during the period.

    ASADA CEO Ben McDevitt issued a Disclosure Notice to J D Willey, the CEO of Eagle Services Texas USA. The Disclosure Notice threatened the CEO with civil penalties if he didn’t comply and gaol if he provided misleading information. On page 4 of his letter to Eagle Services, Mr McDevitt, inter alia, said: “Section 137.1 of the Criminal Act 1995 makes it an offence in certain circumstances to knowingly provide false or misleading information. The offence is punishable on conviction by imprisonment for not more than twelve months.”

    Staffer 7 informed each player that:

    “Under the Commonwealth Criminal Code, if you tell or provide false or misleading evidence or information to a Commonwealth official [ASADA staff such as me], it’s a serious offence.”

    On 23 May 2017, (348 days after my original FOI request) one of ASADA’s lawyers informed the Information Commission that: “Mr Francis’ revision of this request has refined the search to such an extent that ASADA is able to state: ‘No document containing the clause “Thymosin Beta-4 for the purpose of doping the Essendon players, exists’”

    Staffer 7, page 25 Final investigation report: “On 18 February 2012, Mr Alavi receives a further supply of peptides from China via Mr Anthony. Included in this supply was a gram each of Thymosin Beta-4 and Hexarelin. Staffer 7 planted evidence by replacing the word Thymosin with the word Thymosin beta-4.