Customs House
5 Constitution Avenue
Canberra ACT 2601
File No: 2014/015117
19 May 2014
Mr de Garis
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr de Garis,
Freedom of Information Request
I refer to your email dated 5 May 2014 in which you have sought access to documents held by the
Australian Customs and Border Protection Service (ACBPS) under the
Freedom of Information Act
1982 (the FOI Act) (via Right to Know website).
I am authorised under section 23 the FOI Act to make decisions to release and to refuse access to
exempt documents.
Scope of Request
You have requested access to the fol owing documents:
"a copy of all documents and communications containing the phrase "Operation Sovereign
Murders", a slip of the tongue uttered by Scott Morrison on 28 February, 2014, at the Joint
Doorstop Interview in Darwin".
Decision on access
ACBPS has undertaken reasonable searches in relation to your request. No documents were in
the possession of ACBPS on 5 May 2014 when your FOI request was valid and ACBPS therefore
has no records to produce.
My decision is based on the application of section 24A of the FOI Act.
Your Review Rights
The FOI Act grants you rights to have my decision reviewed.
Information regarding your review rights is available in the Office of the Australian Information
Commissioner's FOI Fact Sheet 12 at
Attachment B for your reference.
ATTACHMENT A
Relevant Legislation
Section 24A - Documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1)
An agency or Minister may refuse a request for access to a document if:
(a) al reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency’s or Minister’s possession but cannot be found; or
(ii)
does not exist.
Document not received as required by contract
(2)
An agency may refuse a request for access to a document if:
(a) in order to comply with section 6C, the agency has taken contractual measures
to ensure that it receives the document; and
(b) the agency has not received the document; and
(c) the agency has taken al reasonable steps to receive the document in
accordance with those contractual measures.
A1
ATTACHMENT B
FOI fact sheet 12
Freedom of information – Your review rights
April 2011
If you disagree with the decision of an Australian Government agency or minister under the
Freedom of
Information Act 1982 (the FOI Act), you can ask for the decision to be reviewed. You may want to seek
review if you sought certain documents and were not given ful access, if someone is to be granted access
to information that is about you, if the agency has informed you that it wil impose a charge for processing
your request or if your application to have your personal information amended was not accepted. There
are two ways you can ask for review of a decision: internal review by the agency, and external review by
the Australian Information Commissioner.
Internal review
or would not address your concerns (for example,
if you were not consulted about a document
If an agency makes an FOI decision that you
that contains your personal information before it
disagree with, you can ask the agency to review
was released). For more information see FOI fact
its decision. The review wil be carried out by a
sheet 13 –
Freedom of information: How to make
different agency officer, usually someone at a more
a complaint.
senior level. There is no charge for internal review.
Do I have to go through the agency’s internal
You must apply within 30 days of being notified
review process first?
of the decision, unless the agency extended the
No. You may apply directly to the Information
application time. You should contact the agency if
Commissioner. However, going through the
you wish to seek an extension. The agency must
agency’s internal review process gives the
make a review decision within 30 days. If it does
agency the opportunity to reconsider its initial
not do so, its original decision is considered to be
decision, and your needs may be met more
affirmed.
quickly without undergoing an external review
Internal review is not available if a minister or
process.
the chief officer of the agency made the decision
Do I have to pay?
personal y.
No. The Information Commissioner’s review is
Review by the Information Commissioner
free.
The Information Commissioner is an independent
How do I apply?
office holder who can review the decisions of
You must apply in writing and you can lodge your
agencies and ministers under the FOI Act.
application in one of the fol owing ways:
Is a review the same as a complaint?
online: www.oaic.gov.au
No. The Information Commissioner also investigates
post:
GPO Box 2999, Canberra ACT 2601
complaints about agency actions under the FOI Act.
However, if you are complaining that an agency
fax:
+61 2 9284 9666
decision is wrong, it will be treated as an application
for a review. Your matter wil be treated as a
email:
xxxxxxxxx@xxxx.xxx.xx
complaint when a review would not be practical
in person: Level 3,
175 Pitt Street
Sydney NSW 2000
FOI Fact Sheet 12 – Freedom of information: Your review rights
B1
An application form is available on the website at
Can I withdraw my application?
www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are
Yes. An application can be withdrawn at any time
objecting to (if one was provided), and your
before the Information Commissioner makes a
contact details. You should also set out why you are
decision.
objecting to the decision.
What happens in the review process?
Can I get help in completing the application?
The review process is designed to be as informal
Yes. The Information Commissioner’s staff are
as possible. The Information Commissioner
available to help you with your application if
may contact you or any of the other parties to
anything is unclear.
clarify matters and seek more information. The
Information Commissioner may also ask the agency
When do I have to apply?
or minister to provide reasons for their decision if
If you are objecting to a decision to refuse access
the reasons given were inadequate.
to documents, impose a charge or refuse to amend
Most reviews wil be made on the basis of the
a document, you must apply to the Information
submissions and papers provided by the parties.
Commissioner within 60 days of being given notice
Sometimes the Information Commissioner may
of the decision. If you are objecting to a decision
decide to hold a hearing if one of the parties
to grant access to another person, you must apply
applies. Parties may participate in a hearing by
within 30 days of being notified of that decision.
telephone. If confidential matters are raised, the
You can ask the Information Commissioner for an
hearing may be held partly or whol y in private.
extension of time to apply, and this may be granted
Wil there be other parties to the review?
if the Information Commissioner considers it is
reasonable in the circumstances.
There may be. The Information Commissioner
can join other parties who are affected by the
Who wil conduct the review?
application. For example, if you are objecting to
Staff of the Information Commissioner wil conduct
someone else being granted access to information
the review. Only the Information Commissioner, the
that concerns you, that person may be joined in
FOI Commissioner or the Privacy Commissioner can
the review.
make a decision at the end of the review.
Can someone else represent me?
Does the Information Commissioner have to
Yes, including a lawyer. However, the Information
review my matter?
Commissioner prefers the process to be as informal
No. The Information Commissioner may decide
and cost-effective as possible and does not
not to review an application that is frivolous,
encourage legal representation.
misconceived or lacking in substance, or if you fail
Wil the Information Commissioner look at al
to cooperate with the process or cannot be contacted
documents, including ones that are claimed to
after reasonable attempts. You cannot appeal
be exempt?
against that decision.
Yes. The Information Commissioner’s review is a
Alternatively the Information Commissioner may
fresh decision, so all the relevant material must be
decide that the Administrative Appeals Tribunal
examined, including documents that the agency or
(AAT) would be better placed to review the matter,
minister has declined to release. Developments that
and if so, wil advise you of the procedure for
have occurred since the original decision may also
applying to the AAT. This wil not be common.
be considered.
FOI Fact Sheet 12 – Freedom of information: Your review rights
B2
What powers does the Information Commissioner
What can I do if I disagree with the Information
have?
Commissioner’s review decision?
While the review process is designed to be
You can appeal to the AAT. The Information
informal, the Information Commissioner has formal
Commissioner wil not be a party to those
powers to require anyone to produce information
proceedings. The fee for lodging an AAT application
or documents, to compel anyone to attend to
is $777 (at November 2010), although there are
answer questions and to take an oath or
exemptions for health care and pension concession
affirmation that their answers wil be true.
card holders and the AAT can waive the fee on
financial hardship grounds.
An agency or minister can also be ordered to
undertake further searches for documents.
FOI applications made before 1 November
What decisions can the Information Commissioner
2010
make?
The Information Commissioner can only review an
After reviewing a decision, the Information
agency’s or minister’s FOI decision if you made your
Commissioner must do one of three things:
FOI request on or after 1 November 2010. If you
set the decision aside and make a fresh decision
made your FOI request before 1 November, even if
affirm the decision, or
the decision was made after that date, the review
vary the decision.
process is different.
The Information Commissioner wil give reasons for
You must first ask the agency for internal review of
the decision.
the decision. You may then appeal to the AAT if you
are not satisfied with the decision.
Wil the decision be made public?
Yes. The Information Commissioner wil publish
The information provided in this fact sheet is of a
decisions on the website. Exempt material (that is,
general nature. It is not a substitute for legal advice.
material that is not released) wil not be included.
Nor wil the name of the review applicant, unless
that person requests otherwise or there is a special
For further information
reason to publish it.
telephone: 1300 363 992
email: xxxxxxxxx@xxxx.xxx.xx
write: GPO Box 2999, Canberra ACT 2601
or visit our website at
www.oaic.gov.au
FOI Fact Sheet 12 – Freedom of information: Your review rights
B3
ATTACHMENT C
FOI fact sheet 13
Freedom of information – How to make a complaint
October 2010
You may complain to the Australian Information Commissioner if you have concerns
about how an Australian Government agency handled a request for documents under
the
Freedom of Information Act 1982 (the FOI Act) or took any other action under that
Act. If you are unhappy with the agency’s decision about giving or refusing access to
documents, you should ask for the decision to be reviewed, which is a separate process.
Disagree with an FOI decision?
If the Information Commissioner decides to
If you disagree with an agency’s or minister’s
investigate your complaint, the agency you have
decision on your request under the FOI Act, you
complained about wil be notified in writing of
have the right to have the decision reviewed.
the complaint. The Information Commissioner
You can ask an agency to review its decision
conducts investigations of complaints in private.
internal y. You also have the right to ask the
Information Commissioner to review an agency’s
Who can make a complaint?
or minister’s decision. See
FOI Fact Sheet 12
Any person can make a complaint about the
Freedom of information – Your review rights
actions of an agency in relation to an FOI activity.
for more information about the review process.
You do not need to have requested documents
If you are concerned about the way an agency
under the FOI Act.
has handled your matter, you can complain to the
Information Commissioner.
When should I make a complaint?
You can complain to the Information
What are the powers of the Information
Commissioner at any time. If your complaint
Commissioner?
relates to an FOI request you can make the
The Information Commissioner can investigate
complaint at any stage of the process.
a complaint about how an agency handled
Before making a complaint to the Information
an FOI request, or other actions the agency
Commissioner, you should contact the agency
took under the FOI Act. The Information
directly to try to resolve your concerns. The
Commissioner cannot investigate a complaint
Information Commissioner may decide not to
about a minister.
investigate your complaint if you have not raised
In conducting the investigation the Information
your concerns first with the agency or you have
Commissioner has the power to:
not given the agency a reasonable opportunity
to deal with your complaint.
• make inquiries of an agency
• obtain information from any person
• take possession of, or inspect, any relevant
documents.
FOI Fact Sheet 13 – How to make a complaint
C1
How do I make a complaint?
Can the Information Commissioner decide not to
investigate my complaint?
Your complaint must be in writing and must
Yes. The Information Commissioner may decide
specify the agency you are complaining about.
not to investigate, or may discontinue an
You can send your complaint to us using
investigation, if:
the details at the end of this fact sheet. A
complaint form is also available on our website
• your complaint does not concern an agency’s
at www.oaic.gov.au.
action under the FOI Act
If you need help we can assist you. You can
• it is more appropriate for you to complain
contact us on 1300 363 992 or by email
to another body (such as the agency or the
to xxxxxxxxx@xxxx.xxx.xx.
Commonwealth Ombudsman)
What information do I need to put in the
• it is more appropriate for you to ask for the
complaint?
decision to be reviewed
To help the Information Commissioner give
• the agency you complained about has dealt
the best consideration to your complaint,
with your complaint, or is in the process of
please provide as much relevant information
dealing with it
as possible. Be clear about the issues in your
complaint and what action or outcome you
• your complaint is frivolous, lacking in
would like to see as a result.
substance or not made in good faith
Is there a fee for making a complaint?
• you do not have sufficient interest in the
matter.
No. There are no costs involved in making a
complaint to the Information Commissioner.
If the Information Commissioner decides not to
investigate or discontinues an investigation, the
What will happen to my complaint?
Commissioner wil notify you and the agency of
the reasons for this in writing.
An officer of the Information Commissioner wil
contact you to discuss your complaint and you wil
How will my complaint be resolved?
be kept informed of the progress of your
complaint along the way.
In some cases the Information Commissioner’s
investigation and intervention may result
Before deciding whether to investigate your
in the agency addressing the issues that
complaint the Information Commissioner may
you have complained about. In other cases
make preliminary inquiries of the agency you have
the Information Commissioner may make
complained about.
suggestions or recommendations that the
If the Information Commissioner decides to
agency should implement. You and the agency wil
investigate your complaint, the Commissioner
be notified in writing of the outcome of the
wil write to the agency and request information
investigation.
to assist with the investigation.
FOI Fact Sheet 13 – How to make a complaint
C2
If an agency fails to take adequate
The Information Commissioner can also transfer
and appropriate action to implement
to the Ombudsman a complaint that could more
any recommendations, the Information appropriately be investigated by the Ombudsman.
Commissioner may issue a formal implementation
This could occur where the FOI complaint is only
notice. This notice requires
one part of a wider grievance about an agency’s
the agency to explain what action it wil take
actions. It is unlikely that this will be common. You
to implement the recommendations. The
will be notified in writing if your complaint is
Information Commissioner may also provide a
transferred.
written report to the minister responsible for
the agency, and the report wil be tabled in
Parliament.
The information provided in this fact sheet is of a
general nature. It is not a substitute for legal advice.
Your name wil not be included in the report
unless there is a special reason and you were
first consulted.
For further information
Investigation by the Ombudsman
telephone: 1300 363 992
The Commonwealth Ombudsman can also
email: xxxxxxxxx@xxxx.xxx.xx
investigate complaints about action taken by
write: GPO Box 2999, Canberra ACT 2601
agencies under the FOI Act. However, if the issue
or visit our website at
complained about either could be or has been
www.oaic.gov.au
investigated by the Information Commissioner,
the Ombudsman wil consult the Information
Commissioner to avoid the same matter being
investigated twice. If the Ombudsman decides not
to investigate, the complaint and al
relevant documents must be transferred to the
Information Commissioner.
FOI Fact Sheet 13 – How to make a complaint
C3
