Australian Securities
and Investments Commission
no
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
Phil ip Sweeney
Fax: +61 1300 729 000
By email: foi+request-6439-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
www.asic.gov.au
Our Reference:
FOI 110-2020
20 July 2020
Dear Mr Sweeney
Freedom of Information Request No. 110-2020
Notice to Identify Documents under Section 24AB of the Act
I refer to five (5) requests you sent to ASIC dated between 28 June 2020 and 30 June
2020, seeking access to documents under the
Freedom of Information Act 1982 (
FOI Act).
On 10 July 2020 I sent you a notice under s 24AB of the FOI Act (the
Notice) advising
that:
• the 5 requests would be treated as a single request pursuant to s 24(2) of the
FOI Act; and
• the requests, as combined, were subject to practical refusal ground on the
basis that the request did not satisfy the requirement in paragraph 15(2)(b)
(identification of documents).
In the Notice you were invited to submit a revised request addressing the practical
refusal ground.
On 14 July 2020 ASIC received your revised request which is described in the attached
schedule (the
Request).
Section 15(2)(b) of the FOI Act
Upon further consideration and having conducted searches to identify documents
falling within the Request, I have identified additional parts of the Request that are
subject of a practical refusal ground on the basis of s 15(2)(b).
In your Request (at part 1), you refer to your complaint to ASIC dated 31 March 2009
(ASIC reference: 15476/09) and Mr Greg Hackett’s response dated 22 April 2009 to this
complaint. The Request seeks access to “a copy of the letter dated around mid-2010
in which Warren Day reported on the "investigation" into his own "Straw Man"
complaint.” My searches have failed to identify any document(s) that matches your
description of “Straw man” or any document dated “mid-2010” in relation your
complaint dated 31 March 2009. However, I have identified a document dated 2 July
2010 from Mr Warren Day addressed to you responding to your letter dated 25 April
2
2020 addressed to former ASIC Chair Tony D’Aloisio (ASIC reference: CCU-10\0195).
Please advise if this is the document you seek in the Request.
In your Request (at part 2), you refer to a request for information by Senator John
Wil iams to ASIC dated 6 January 2014 and characterise ASIC’s response to that request
as “false and misleading information provided to Senator Wil iams”. The Request seeks
“a copy of the response sent by Ms Tenaski to former Senator John Wil iams sometime
after 6 January 2014”. Whilst am unable to identify any document(s) which may be
“false and misleading” my searches have identified a document dated 17 January
2014 from Ms Belinda Taneski addressed to Senator John Wil iams responding to his
request dated 6 January 2014 (ASIC reference CCU-14\0006). Please advise if this is the
document you seek in the Request..
In your Request (at part 4), you refer to a request for information by Senator John
Wil iams to ASIC dated 28 January 2014 and characterise ASIC’s response as “false and
misleading information provided to Senator Wil iams”. In discussing this document, you
note that:
“
Therefore, Mr Fitzpatrick provided former Senator Williams with false and misleading
information related to:
-
The provisions of statutory law; namely the provisions of section 1017C of the
Corporations Act 2001; and
-
The provisions of the general law of trusts; namely how a trustee must interpret the
original trust Deed and all VALID amending Deeds executed up until the time a
‘release event” occurs when determining a benefit payment or payments.”
I am unable to identify any document(s) that matches your description. The request
seeks “a copy of the response sent by Gerard Fitzpatrick to former Senator John
Wil iams sometime after 28 January 2014 where no mention of subsection 1017C(5) was
made”. Whilst I am unable to identify any document(s) which may be “false and
misleading”, my searches have identified a document dated 11 February 2014 from Mr
Gerard Fitzpatrick addressed to Senator John Wil iams responding to his request dated
28 January 2014 (ASIC reference CCU-14\0060). Please advise if this is the document
you seek in your Request.
As the Request does not satisfy the requirement set out in section 15(2)(b) of the FOI
Act which states that a request for access to a document must ‘
provide such
information concerning the document as is reasonably necessary to enable a
responsible officer of an agency… to identify it’ ASIC may, in accordance with section
24(1)(b) of the Act, refuse to process your application.
For the reasons stated above, the Request in its current form does not adequately
identify the documents sought and it would therefore be my intention to refuse the
Request given that a practical refusal reason exists within the meaning of section
24AA(1)(b) of the FOI Act.
Request consultation process
The purpose of this letter is to provide you with an additional opportunity to revise the
Request so that the practical refusal reason no longer exists before a final decision is
made. Should you wish to submit a revised request please take into consideration the
issues raised in this notice to ensure that they are addressed.
3
Timeframe
The statutory timeframe for notifying an applicant of a decision on a request for access
under the FOI Act is 30 days from the day the agency receives the request. Please note
that in accordance with section 24AB(8) of the FOI Act, the time for processing your
request is suspended from the day that you receive this letter, and resumes on the day
after ASIC receives from you one of the fol owing:
• written notification that you wish to withdraw the request;
• a revised written request addressing the matters raised above; or
• written notification that you do not wish to revise your request.
If you choose to do one of the fol owing actions above mentioned, you must do so
within 14 days of the date of this letter (the
consultation period). If I have not heard
from you by the end of the consultation period, your request wil be taken to be
withdrawn in accordance with section 24AB(7) of the FOI Act.
Should you wish to provide written notification to withdraw the request this must also
be done within the consultation period. A written notification of withdrawal is effective
at the time of the withdrawal. Section 24AB(7) provides that a withdrawal is effective
at the end of the consultation period if the applicant does not take any action.
During the consultation period you may wish to seek assistance in reframing your
request. If you have any questions or wish to discuss, please contact me by email at
xxxxxxx.xxxx@xxxx.xxx.xx Yours sincerely,
Krystal Fung
(Authorised decision maker pursuant to subsection 23(1) of the FOI Act)
For the Australian Securities and Investments Commission
4
Schedule of Phillip Sweeney requests 28 June 2020 to 30 June 2020
Request
Date of Request
Documents sought in Request
No.
1.
28 June 2020
“ …The document I seek is a copy of the letter
dated around mid-2010 in which Warren Day
reported on the "investigation" into his own "Straw
Man" complaint.”
2.
29 June 2020
“…The document I seek is a copy of the response
sent by Ms Tenaski to former Senator John Wil iams
sometime after 6 January 2014.”
3.
29 June 2020
“ …The first document I seek is a copy of the
response sent by Warren Day to former Senator
John Wil iams sometime after 18 July 2013.
I am also seeking a copy of the original Trust Deed
made on the 23 December 1913 in the State of
South Australia when the original sponsoring
employer was Elder Smith & Co Ltd that should
have been obtained by Warren Day in 2013 or at a
later date by ASIC.”
4.
30 June 2020
“…The document I seek is a copy of the response
sent by Gerard Fitzpatrick to former Senator John
Wil iams sometime after 28 January 2014 where no
mention of subsection 1017C(5) was made.”
