ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2020/208
Trav S
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Trav S
I refer to your email of 26 September 2020, which was in response to a practical refusal
consultation notice issued to you by the Department of the Prime Minister and Cabinet (the
Department) on 25 September 2020 in relation to your request under the
Freedom of
Information Act 1982 (the
FOI Act).
In your email of 26 September 2020, you relevantly advised as follows:
Section 24AB suggests if the applicant contacts the contact person during the
consultation period in accordance with the notice, the agency may take reasonable
steps to assist the applicant to review the request so that the practical refusal reason
no longer exists.
I will be grateful for your advice. Document B13/1718 informed a Ministerial
decision. Recent FOI disclosures reveal the Minister’s decision was predicated, at
least in part, on the advice "we would expect strong criticism from existing medal
holders and others of a decision to extend eligibility for the medal beyond the original
purpose, which is to recognise not-for-profit humanitarian service”.
The advice is unsubstantiated and may be incorrect. The Medal’s original Letters
Patent came before the governing regulations. They state the Medal was instituted to
accord "recognition to persons who have given humanitarian in hazardous
circumstances outside Australia". Definitions are important, they say what particular
words mean and give words special meaning for particular Acts or instruments. The
regulations governing the Medal prescribe "humanitarian service means service
giving immediate remedy or action to assist the needy or distressed persons in order
to sustain the life and dignity of those persons”. The regulations do not appear to use
the term not-for-profit.
The advice may have conflated the Medal's purpose, prescribed by Letters Patent,
with the types of organisations the Medal is principally awarded to i.e. humanitarian
not-for-profit organisations. However the Medal was designed to be flexible to
accomodate Government approval of operations conducted under the authority of
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
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international or national agencies. This is evidenced by the Australian contingent to
the rehabilitation program in Iraq carried out by the Coalition Provisional Authority
being a prescribed eligible organisation in the Medal’s declaration for Iraq.
The advice may be the opposite of the evidence. The public record shows examples of
commercial contractors being awarded the Medal in recognition of their service with
the Australian contingent to the Coalition Provisional Authority. Documents shows
AusAID, the lead agency responsible for delivering the Australian Government’s
humanitarian programs for the Iraqi people supported the Medal being awarded.
AusAID staff in Canberra supported the case as did medal holders from the Australian
contingent to Iraq. It appears unreasonable for the advice to claim to know the publics
opinion without reference. It appears reasonable to question the utility of uninformed
opinions in any case.
I would like to revise my request to ask for the documents demonstrating the advice
was predicated on substantive fact versus unsubstantiated opinion.
Any help will be greatly appreciated.
Authorised decision-maker The authorised decision-maker for your request is David Belgrove, Acting Assistant
Secretary, Parliamentary and Government Branch.
Notice of intention to refuse your FOI request
Section 24(1) of the FOI Act provides that a request to an agency may be refused if the
decision maker is satisfied that a practical refusal reason (as set out in section 24AA of the
FOI Act) exists in relation to the request.
Section 24AA of the FOI Act provides that for the purposes of section 24 of the FOI Act a
request raises a practical refusal reason if the work involved in processing the request would
substantially and unreasonably divert the resources of an agency from its other operations
(section 24AA(1)(a)(i) of the FOI Act).
I write to advise you that the decision maker considers that your revised request has not
removed the practical refusal reasons under section 24AA(1)(a)(i). The decision maker
therefore intends to refuse access to the documents requested.
However, before the decision maker makes a final decision to refuse the request for a
practical refusal reason, you have an opportunity to revise your request. This is called a
‘request consultation process’ as set out under section 24AB of the FOI Act. You have
14 days to respond to this notice in one of the ways set out below.
Reasons for intention to refuse your request
In deciding if a practical refusal reason exists, an agency must have regard to the resources
required to perform the following activities specified in section 24AA(2) of the FOI Act:
1
1 ‘Guidelines issued by the Australian Information Commissioner under s 93A of the
Freedom of Information
Act 1982’ (FOI Guidelines) , Part 3 – Processing and Deciding on Requests for Access (version 1.7, June 2020),
[3.116].
2
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• 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;
• making copies of documents;
• notifying an interim or final decision to the applicant.
Other matters that the decision maker finds relevant in deciding if a practical refusal reason
exists include:
• the staffing resources available to an agency or minister for FOI processing;
• whether the processing work requires the specialist attention of a minister or senior
officer, or can only be undertaken by one or more specialist officers in an agency who
have competing responsibilities;
• the impact that processing a request may have on other work in an agency or
minister’s office, including FOI processing;
• whether an applicant has cooperated in framing a request to reduce the processing
workload
• whether there is a significant public interest in the documents requested;
• other steps taken by an agency or minister to publish information of the kind requested
by an applicant.
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The decision maker has considered your revised request and considers that the practical
refusal reason remains, because the Department would still be required to undertake the same
document searches and retrieval process to identify “documents demonstrating the advice was
predicated on substantive fact versus unsubstantiated opinion”.
The Department acknowledges that the processing of requests for access to documents is a
legitimate part of each agency’s functions, and that FOI requests may require reallocation of
resources within an agency. However, the Department could not reasonably divert resources
to assist in processing the request. In reaching this view, the Department has had regard to the
public interest in access to information held by the Department but considers the public
interest in access is outweighed by the competing public interest in the ability of the
Department to undertake its ordinary functions without substantial impairment, including the
processing of other FOI requests.
For the reasons given above, the decision maker considers that processing the revised request
would be a substantial and unreasonable diversion of the Department’s resources from its
other operations.
Request consultation process
You now have an opportunity to revise the request to enable it to proceed. Revising the
request can mean narrowing the scope of the request to make it more manageable or
explaining in more detail the specific documents you wish to access. We will assess whether
any revised request has removed the practical refusal reason.
2 FOI Guidelines, [3.117].
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You may wish to consider revising your request by, for example:
• narrowing the timeframe of the documents you are seeking;
• providing further specificity in relation to the documents you wish to access.
No guarantee of access
Please be aware that even if you revise the FOI request to enable it to be processed, there is
still no guarantee that documents will ultimately be released. That is a matter for the
decision-maker to decide in the usual manner after examining the relevant documents. The
issue we are addressing at the moment is whether the FOI request can be processed – not what
the eventual outcome may be if it is processed.
Action required
Section 24AB of the FOI Act provides that you must do one of the following, in writing,
within the next 14 days:
• revise the FOI request;
• indicate that you do not wish to revise it; or
• withdraw the FOI request.
If you do
not do one of the above within the next 14 days, the FOI request will be taken to
have been withdrawn as per subsection 24AB(7) of the FOI Act. If you were to revise the FOI
request in a way that adequately addresses the above concerns and makes it manageable, the
Department will recommence processing it.
Calculation of 30 day period
Please note that the time taken to consult with you regarding the scope of the FOI request is
not taken into account for the purposes of calculating the 30 day period during which the
Department is required to take all reasonable steps to process the FOI request.
Should you wish to discuss your request, please contact the Department’s FOI and Privacy
Section on (02) 6271 5849, or by email t
o xxx@xxx.xxx.xx, quoting reference number
FOI/2020/208.
Yours sincerely
Leila Galang
A/g Senior Advisor
FOI & Privacy Section
8 October 2020
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