ONE NATIONAL CIRCUIT
BARTON
FOI/2021/092IR
INTERNAL REVIEW DECISION AND REASONS
UNDER SECTION 54 OF THE FREEDOM OF INFORMATION ACT 1982
FOI
REQUEST BY:
Trav S
DECISION BY: Mr John Reid PSM
First Assistant Secretary
Government Division
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
I refer to your email of 13 July 2021 in which you requested an internal review of the decision
(the
primary decision) dated 12 July 2021 by Mr Peter Rush, Assistant Secretary,
Parliamentary and Government Branch, Department of the Prime Minister and Cabinet
(the
Department) under the
Freedom of Information Act 1982 (the
FOI Act).
Under section 54(2) of the FOI Act, an applicant is entitled to apply for an internal review of a
decision refusing to give access to a document in accordance with a request.
Authorised decision maker
Section 54C(2) of the FOI Act provides that an agency must arrange for a person (other than
the person who made the original decision) to review the decision. I am authorised to make
this decision in accordance with arrangements approved by the Department’s Secretary under
section 23 of the FOI Act.
Internal review decision
I have decided to affirm the primary decision to refuse your FOI request under section
24A(1)(b)(ii) of the FOI Act.
In reaching my decision I have had regard to:
• your FOI request;
• the primary decision;
• the record of searches undertaken for documents meeting the terms of your FOI
request;
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
• your email of 13 July 2021 3:32AM in which you requested internal review, and your
email 13 July 2021 5:57PM, in which you clarified your request for internal review;
• the FOI Act; and
• the
Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (the
FOI Guidelines).
Background
The FOI request
On 11 June 2021, you made a request under the FOI Act to the Department in the following
terms:
Can we ask for a copy of all documents related to a file titled "Humanitarian Overseas
Service Medal Amendment Regulation: Iraq clasp".
The primary decision
On 12 July 2021, the Department notified you of the primary decision on your FOI request.
The decision was to refuse your FOI request under section 24A(1)(b)(ii) of the FOI Act, for
the following reasons:
Section 24A(1) of the FOI Act provides that:
An agency or Minister may refuse a request for access to a document if:
(a) all 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.
The Department has searched its files, but no file has been found with the title
‘Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp’.
I am satisfied that all reasonable steps have been taken to find documents relevant to
the FOI request, and that no documents relevant to the FOI request exist in the
Department.
I have therefore decided to refuse the FOI request under section 24A(1)(b)(ii) of the
FOI Act.
The internal review request
On 13 July 2021 3:32AM, you requested internal review in the following terms:
Please review Mr Rush's decision that:
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“I am satisfied that all reasonable steps have been taken to find documents relevant to
the FOI request, and that no documents relevant to the FOI request exist in the
Department”.
Mr Rush's claim conflicts with his own Department's claim to hold Legal Professional
Privilege (LPP) over 29 documents the Attorney Generals Department holds related
to the "Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".
We contend it is unreasonable to claim LPP on documents that don't exist. It is
unreasonable to claim documents don't exist when there is a LPP claim made on them.
I bring your attention to:
22 Feb 2012, the public record shows Mr Rush in email correspondence with AusAID
and other PMC stakeholders. The email subject title is "“HOSM for CRG
Contractors in Iraq [SEC=UNCLASSIFIED]". These documents are relevant to our
FOI request, there were around 10 emails.
19 Mar 2012, the public record shows Mr Rush received an email with his
Department proposing draft text for AusAID’s consideration that his Department
proposed to brief PSPM Senator Jan McLucas with soon. The draft “Amendment of
HOSM (Iraq) declaration 2004 to extend to specified commercial contractors” is
relevant to our FOI request.
5 Dec 2012, the public record shows Mr Rush decided “The Minister for Foreign
Affairs would need to write to the PM supporting the case for a new declaration to
apply”. Relevantly, earlier in 2012 Mr Rush failed to give PSPM Senator the Hon Jan
McLucas the proposed amendment without reasonable excuse.
26 June 2013, the public record shows the Minister for Foreign Affairs, Senator the
Hon Bob Carr, provided the letter Mr Rush requested.
26 Nov 2019, the public record shows Mr Rush was to be informed of OPC’s decision
to refuse access to a public FOI request seeking access to an amendment to the HOSM
Declaration in 2012.
23 April 2021, the public record shows PMC emailed the Attorney General’s
Department. The AGs holds 29 documents relating to the HOSM Amendment
Regulation: Iraq clasp. They largely comprise communications between PMC and
Office of Legislative Drafting and Publications. Their dominant purpose being the
provision of legislative drafting instructions, legal advice and draft legislation. AGs
confirms the documents regard our case.
The FOI Guidelines state:
“It is not enough for an agency to simply assert that the document cannot be found or
does not exist before taking any demonstrable steps to try and find the requested
document.”
Mr Rush has not satisfied the two elements that must be established before refusing a
request via section 24A. It is unreasonable they claim PMC holds no documents
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relevant to our FOI request. He has knowledge of documents directly relevant to the
request but has not taken reasonable steps to find them.
Mr Rush's claim that PMC holds no documents relevant to our FOI request is untrue.
It conflicts with the AGs claim of holding 29 documents relating to the "Humanitarian
Overseas Service Medal Amendment Regulation: Iraq clasp".
On 13 July 2021 5:57PM, you provided the following clarification:
Please accept the following clarification:
1. The Attorney Generals Department created file number 12/5946 - Humanitarian
Overseas Service Medal Regulation: Iraq clasp. This is evidenced in Senate Order
Final List - Jan to Jun 2012
2. The Office of Parliamentary Counsel holds file number 12/5946 related to the
Humanitarian Overseas Service Medal Regulation: Iraq clasp. There are 29 relevant
documents in this file. This is evidenced by OPC FOI request no. 7-2021
Please also take the following information into consideration:
3. Mr Rush waived legal professional privilege over documents prepared for
Parliamentary Secretary to the Prime Minister Senator the Hon. Jan McLucas. This
is evidenced by PMC FOI request 2020/267. Mr Rush states "The Department is not
required to seek legal advice in the course of drafting briefs. The responsible line
area has confirmed that no such legal advice as described in the terms of your request
was sought."
4. Legal professional privilege cannot reasonably be applied to documents that
already exist in the public space. Mr Rush acknowledges AusAID disclosed
documents to me. We ask PMC release documents titled "HOSM for CRG
Contractors in Iraq [SEC=UNCLASSIFIED]" and "Humanitarian Overseas Service
Medal (Iraq) Declaration [SEC=UNCLASSIFIED]".
5. Within these documents are drafts of the "proposed declaration under the new
HOSM Regulations 2011, which would repeal the current Iraq declaration made
under the repealed regulations." Mr Rush implies these documents do not exist while
at the same time he acknowledges AusAID disclosed copies to us.
Reasons
I have considered your email of 13 July 2021 3:32AM in which you requested internal
review, and your email 13 July 2021 5:57PM, in which you clarified your request for internal
review. I agree with the findings and reasons given in the primary decision for refusing your
FOI request under section 24A(1)(b)(ii) of the FOI Act.
I note that, in your subsequent emails, you have sought to clarify the documents to which you
are seeking access. However, your FOI request (and the subject of this internal review
decision) was for ‘a copy of all documents related to a file titled “Humanitarian Overseas
Service Medal Amendment Regulation: Iraq clasp”’. The Department does not hold a file
titled ‘Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp’. It is
therefore not possible for the Department to identify what documents ‘relate’ to such a file. It
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is open to you to make new requests under the FOI Act for the documents you have identified
in your emails of 13 July 2021.
Review rights
Information about your rights of review under the FOI Act is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions
in relation to this decision. Making a complaint about the way the Department has handled an
FOI request is a separate process to seeking review of the Department’s decision. Further
information about how to make a complaint is available at https://www.oaic.gov.au/freedom-
of-information/reviews-and-complaints/make-an-foi-complaint/.
Yours sincerely
John Reid PSM
First Assistant Secretary
Government Division
29 July 2021
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