3 December 2013
Mr Brendan Molloy
Councillor
Pirate Party Australia
By email: xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Molloy
Request for access to documents under the FOI Act – ALRC Copyright Review and TPP Agreement
1. I refer to your application for access to documents under the
Freedom of Information Act 1982 (
FOI Act) dated,
and received in this office on, 4 November 2013.
2. You requested access to documents relating to:
… any discussion or advice (given or received) regarding the ALRC Copyright Review in the context of the
Trans-Pacific Partnership Agreement.
3. Pursuant to section 24A of the FOI Act, I write to formally refuse your request on the grounds that al reasonable
steps have been taken to identify and locate the documents to which you seek access and, on this basis, I am
satisfied that the documents do not exist.
Interpretation of scope
4. In relation to your request, I have interpreted your reference to the ‘ALRC Copyright Review’ as being to the
Australian Law Reform Commission’s Inquiry into Copyright and the Digital Economy (
Inquiry).
5. For the purposes of the Inquiry, the Australian Law Reform Commission (
ALRC) released an issues paper on
20 August 2012 and a discussion paper on 5 June 2013. IP Australia made a submission to the issues paper
dated 16 November 2012, and a submission to the discussion paper dated 31 July 2013. Both of these
submissions are available on the ALRC website at www.alrc.gov.au/inquiries/copyright-and-digital-
economy/submissions-received-alrc#DPorg.
Sufficiency of search
6. The Guidelines issued under section 93A of the FOI Act by the Office of the Australian Information
Commissioner (
Guidelines) state, at paragraph 3.54, that:
Agencies should undertake a reasonable search on a flexible and common sense interpretation of the terms
of the request. What constitutes a reasonable search wil depend on the circumstances of each request and
wil be influenced by the normal business practices in the agency’s environment. At a minimum, an agency
or minister should take comprehensive steps to locate a document having regard to:
•
the subject matter of the documents;
•
the current and past file management systems and the practice of destruction or removal of
documents;
•
the record management systems in place;
•
the individuals within the agency who may be able to assist with the location of documents; and
•
the age of documents.
7. The following steps were undertaken by IP Australia to identify and locate the documents relevant to your
request:
• consultation with relevant officers of the Domestic Policy Section in the Policy and Governance
Group, who were responsible for the preparation of IP Australia’s submissions to the Inquiry, and
familiar with the documents used or created for that purpose; and
• electronic searches of the relevant files and folders for IP Australia’s submissions to the Inquiry,
using the relevant (existing) electronic records management system.
8. The electronic searches of the relevant files and folders did not produce any results referencing or relating to
the Trans-Pacific Partnership Agreement; and relevant officers of the Domestic Policy Section confirmed that
there were no discussions or advice (given or received) regarding the Inquiry in the context of the Trans-Pacific
Partnership Agreement.
9. On this basis, I am satisfied that there are no documents in the possession of IP Australia relating to any
discussion or advice (given or received) on the subject of the Inquiry in the context of the Trans-Pacific
Partnership Agreement.
Review rights
10. I have attached a notice in respect of review rights for your information (
Attachment A).
Yours sincerely
Mandy Edlington
Principal Legal Counsel
Office of Legal Counsel
2
ATTACHMENT A
YOUR RIGHTS TO SEEK REVIEW OF A DECISION ON INTERNAL REVIEW MADE UNDER
THE FREEDOM OF INFORMATION ACT 1982 (FOI ACT)
If you do not agree with this decision, you may choose to exercise your review rights in the following ways:
• request IP Australia to conduct an internal review of the decision. If you disagree with IP Australia’s
decision on internal review, you may then apply to the Office of the Australian Information Commissioner
(
OAIC) for a review of that decision; or
• apply directly to the OAIC for a review of the decision. In other words, it is not necessary for an internal
review to be conducted first. If you are dissatisfied with the decision of the Australian Information
Commissioner (
Commissioner), you may apply to the Administrative Appeals Tribunal (
AAT) for a review
of that decision.
Internal review of decision by IP Australia
Pursuant to section 54 of the
Freedom of Information Act 1982 (
FOI Act), you have the right to apply to IP Australia
for an internal review of the decision. The review will be conducted by a different decision maker; and a fresh
decision will be made.
If the decision has been made by the Director-General of IP Australia, you do not have the option to request an
internal review under the FOI Act. You will need to apply for a review of the decision by the Commissioner
(see below).
You do not have to complete a special form in order to request an internal review. However, your application for
an internal review must be made in writing, and lodged within 30 days after the day on which you are notified of
the decision. It is desirable (but not essential) that you outline the reasons why you are dissatisfied with the
decision in your application for internal review. There is no cost attached to an application for internal review.
An application for internal review should be directed by email to xxx@xxxxxxxxxxx.xxx.xx.
Review of decision by the Commissioner
The Commissioner is an independent office holder who is authorised to review decisions of agencies and ministers
made under the FOI Act.
You have the right to apply to the Commissioner for review of this decision on internal review. There is no cost
associated with making an application for review by the Commissioner.
If you are requesting a review of a decision to refuse access to documents, to impose a charge or to refuse to
amend a document, you must make an application in writing to the Commissioner, within 60 days of being notified
of the decision.
If you are objecting to a decision to grant access to a document, you must make an application in writing, to
the Commissioner, within 30 days of being notified of the decision.
3
An application for review by the Commissioner can be lodged online, via email, post or in person. An application
for review by the Commissioner should be directed to:
Office of the Australian Information Commissioner
GPO Box 2999
CANBERRA ACT 2601
Fax: +61 2 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
Or in person to: Level 3, 175 Pitt Street, SYDNEY NSW 2000.
An application form for a review by the Commissioner is available from the OAIC website (www.oaic.gov.au). Your
application should include a copy of the decision to which your application relates. You should also set out the
reasons why you disagree with the decision.
After reviewing a decision, the Commissioner must do one of the following:
• set aside the decision and substitute his own decision for that of the decision under review;
• affirm the decision; or
• vary the decision.
Please advise IP Australia if you make an application for review by the Commissioner, preferably by email
(xxx@xxxxxxxxxxx.xxx.xx).
Review of decision by the Administrative Appeals Tribunal (AAT)
The AAT is an independent body authorised to review certain decisions on their merits and, where the AAT decides
it is appropriate, to substitute its own decision for that of the decision under review.
If you are dissatisfied with the decision of the Commissioner, you are entitled to make an application to the AAT for
a review of that decision. An application for review must be in writing and lodged within 28 days of being notified
of the Commissioner’s decision. If you have good reason for not meeting this timeframe, you can write to the AAT
and request an extension of time in which to lodge your application. Your request for an extension should set out
the reasons why the application was not made within the 28 day period.
Information about making an application to the AAT, and the process for requesting a reduction to the application
fee, is available from the AAT’s website (www.aat.gov.au).
An application to the AAT for a review of the Commissioner’s decision should be directed to:
Administrative Appeals Tribunal
GPO Box 9955
(in your capital city)
Please advise IP Australia if you make an application for review by the AAT, preferably by email
(xxx@xxxxxxxxxxx.xxx.xx).
4
Complaints to the Commissioner or Ombudsman
You can also make a complaint to the Commissioner or the Commonwealth Ombudsman, if you have concerns
about action taken by IP Australia in relation to a request under the FOI Act. Any correspondence or enquiries
should be directed to:
Office of the Australian Information Commissioner
GPO Box 2999
CANBERRA ACT 2601
Fax: +61 2 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
Commonwealth Ombudsman
GPO Box 442
CANBERRA ACT 2601
5