Attachment A
Ref: FOI 2016/17-59
Mr Richard Smith
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
FOI request consultation
We refer to your request of 19 March 2017 for access under the
Freedom of Information Act 1982 (FOI
Act) to,
a) Documents relating to the Commonwealth Department of Agriculture's consideration and
decision to apply for ongoing access to Telecommunications Data as per the
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;
b) The date of each Application made by Commonwealth Department of Agriculture for access to
Telecommunications Data under the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS)
ACT 1979;
c) Documents relating to how Commonwealth Department of Agriculture deals with the privacy
of data obtained through access to ongoing access to Telecommunications Data as per
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979, including how the data
received is obtained, assessed, stored and ultimately destroyed;
d) The number of documents containing data obtained by the Commonwealth Department of
Agriculture through its ongoing access to Telecommunication Data; and
e) The number of documents containing data obtained by the Commonwealth Department of
Agriculture through its ongoing access to Telecommunication Data that Council has determined
are not likely to be required for a permitted purpose and therefore has destroyed, for the period
of time from since the commencement of ongoing access to the data was granted until 17th
March 2017.
Under s 24AA(1)(a)(b) a practical refusal exists where a request does not satisfy the requirements of
s 15(2)(b) of the FOI Act to provide sufficient information concerning the documents reasonably
necessary for the agency to identify them. As worded, the decision-maker considers your request does
not satisfy the requirements of s 15(2)(b).
The wording in parts a) and c) for ‘
Documents relating to…’ does not provide sufficient clarity about
the documents you are seeking. Where your request refers to ‘
The date of each Application….’ In part
b), it is not clear whether you are seeking a list of date information on its own or to include
information about any such requests. Where your request refers to ‘
The number of documents ….’ in
parts d) and e) it is not clear whether you are requesting the documents that contain the specified
information or a document summarising a count of the number of such documents. Without a
T +61 2 6272 3933
18 Marcus Clarke Street
GPO Box 858
agriculture.gov.au
F +61 2 6272 5161
Canberra City ACT 2601
Canberra ACT 2601
ABN 24 113 085 695
specified date range it is unclear what period of time your request is intended to cover. Further, you
will need to clarify which body you are referring to in referring to ‘
that Council’ in part e) of your
request.
Without clarification there is insufficient information to enable the department to identify the
documents. Unless this scope issue is resolved, the decision maker intends to refuse your request.
However, you have an opportunity to revise your request to address the practical refusal reason
before a final decision is made. This is called a ‘request consultation process’ as set out under section
24AB of the FOI Act.
Consultation process
You have 14 days, from the receipt of this notice, to consult with the department concerning your
request.
Under sub-section 24AB(6) of the FOI Act, you are required within the 14 day period to:
• withdraw the request
• make a revised request; or
• indicate that you do not wish to revise the request.
If you do not consult with the department or do one of these things within the next 14 days, your
request will be taken to have been withdrawn. Even with consultation, if the scope of your request
cannot be sufficiently revised to provide clarity and be processed without requiring a substantial and
unreasonable diversion of departmental resources from its other operations, the request may be
refused. You should also be aware that the right of access to documents in the FOI Act is to existing
documents and only requires agencies to produce documents in limited circumstances.
Please note the time period for making a decision in response to your request is suspended until the
conclusion of the consultation process described in this letter.
Contact details
Should you wish to discuss any issues arising from this letter, please contact the department by email
to xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely
[by email]
Charine Bennett
Principal Government Lawyer
Office of the General Counsel
24
March 2017
2
Attachment B
From:
Richard Smith
To:
Foi
Subject:
Re: Your FOI request - Section 24AB Notice - FOI2016/17-59 [SEC=UNCLASSIFIED]
Date:
Wednesday, 29 March 2017 7:12:12 PM
Dear Ms Nolte-Crimp,
RE: FOI 2016/17-59
Thank you for your response of 24 March 2017 regarding my recent request for Government Information under
the Freedom of Information Act 1982.
I do not agree with the decision-maker’s proposition in your letter that my FOI request of 19 March 2017 did
not provide sufficient information for a responsible officer of the Department to identify the document(s) I am
requesting be released.
I will address each part of my request in turn, with respect to the requirements of s15(2)(b) of the Act, below:
My request in a) is very specific. This request is in 2 parts and specifically asks for:
1.
the document(s) where Department’s executive decision making organ, for example what is commonly
referred to as the “Senior Management Team” or “Executive Leadership Team”, discussed applying for access
to Telecommunication Data prior to access being first granted. These documents would usually take the form
of meeting minutes where the issue is discussed, and considered. It could also be a discussion paper or briefing
note/minute where the issue is described and a recommendation is made; and
2.
the document(s) showing when the Department’s executive decision making organ made the decision.
Again this would normally be expected to be meeting minutes where the result of the decision is described and
the resulting actions are listed such as drafting a letter to the Attorney-General requesting access to
Telecommunications Data.
My request as made does indeed therefore satisfy section s15(2)(b) of the Act in that it does “provide such
information concerning the document as is reasonably necessary to enable a responsible officer of the agency,
or the Minister, to identify it”.
It would be a reasonable assumption that the officer responsible for discharging the Freedom of Information
function of the Department would be able to identify the minutes or briefing paper relating to the departmental
decision making in which the Department decides to request sensitive information under an additional power
under Telecommunications Interception legislation.
My request in b) is also very specific. This request specifically asks for a list of every date that the Department
of Agriculture and Water Resources requested access to Telecommunications Data.
Again I take the view that it is a reasonable assumption that the officer responsible for discharging the Freedom
of Information function of the Department would be able to easily identify and collate the dates of official
communications with the Attorney-General requesting access to sensitive Telecommunication Data.
The antithesis of this situation would be to suggest that Departmental requests for access to Telecommunication
Data from the Attorney-General happen so frequently and at such an informal level that it is hard to identify
such requests. I do not think it is reasonable to assume this state of affairs exists.
My request in d) is a specific request to collate the number of documents obtained through access to
Telecommunication Data and provide me with a document listing the final sum. It is a reasonable assumption
that the Department has sufficient record keeping of sensitive data that this exercise should be a trivial one.
Following that, my request in e) is a specific request to collate the number of documents that have been
destroyed, having been originally obtained through access to Telecommunication Data and provide me with a
document listing the final sum of documents destroyed. Again the Department’s record keeping should allow a
quick summation of this information.
The timeframe relating to my requests d) and e) follows logically to be from the date of the granting of the
Department’s initial request as identified in a) up to and including the 19 March 2017.
I do acknowledge that I have made a typing error in e) which you have identified in your correspondence.
Accordingly, please substitute “that the Department” for the words “that Council” to correct this minor error.
In summary, my FOI requests a) through e) go to the Department’s handling of very sensitive information and
thus the standard of record keeping should be commensurate with the sensitivity of the information. Accessing
and reporting on this information should therefore not require substantial and unreasonable diversion of
departmental resources.
Considering that I have illustrated above that all parts of my request, as they were made and without
modification, are for specific Government Information that it can be reasonably assumed can be readily
identified, I am of the opinion that a practical refusal reason does not exist under s24AA(1)(a)(b) of the Act.
It follows then that s24AB of the Act does not yet apply to this request and I therefore expect my request of 19
March 2017 for Government Information to be actioned by the Department of Agriculture & Water Resources,
according to the initial timeframe applying to my request. i.e. I am expecting a reply within 30 days of 19
March 2017.
If this is not the case, considering the public interest importance of this information, I would be amenable for
the Department to request an extension to supplying information via a request under s15AA of the Act.
I await your response
Yours sincerely,
Richard Smith
-----Original Message-----
Dear Mr Smith
Please find attached a section 24AB Notice in relation to your FOI
request.
Regards,
Marianne Nolte-Crimp
Government Lawyer | Freedom of Information and Privacy Team, Office of
the General Counsel
Email [1][email address]
Department of Agriculture and Water Resources [2]www.agriculture.gov.au
18 Marcus Clarke Street, Canberra ACT 2601 Australia GPO Box 858 Canberra
ACT 2601 Australia
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References
Visible links
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