Advice Relating to US Surveillance Programs

Geordie Guy made this Freedom of Information request to Office of the Australian Information Commissioner

The request was partially successful.

From: Geordie Guy

Delivered

Dear Office of the Australian Information Commissioner,

On Wednesday the 12th of June 2013 the privacy commissioner Timothy Pilgirm made a statement titled "US surveillance program — Statement from Australian Privacy Commissioner, Timothy Pilgrim". In that statement, the commissioner makes a number of comments regarding privacy in Australia and recent reports of widespread warrantless surveillance in the United States.

I am writing to request under the act, documents be disclosed that meet the following descriptions.

- Drafts of this statement, as well as any internal correspondence regarding its content

- Requests either from the OAIC or other government departments or bodies that the OAIC and/or the privacy commissioner make such a public statement or any statement regarding media reports of US surveillance revelations

- Legal advice or other general advice that the OAIC has sought or received unsolicited, that concern the legal status or legal implications of recent US surveillance revelations

- Any documents which provide further detail regarding the aforementioned surveillance programs

Yours faithfully,

Geordie Guy

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From: FOI
Office of the Australian Information Commissioner

Dear Mr Guy

I am writing to acknowledge your request under the Freedom of Information Act 1982 (FOI Act) in your email below. The Office of the Australian Information Commissioner (OAIC) reference for this request is FOIREQ13/00024. The 30 day time frame for providing the response to your request makes the decision due by Monday 15 July 2013. If there is a need to consult with third parties, this may be extended by a further 30 days. If this is the case I will let you know.

Information about accessing information from the OAIC, including how we deal with FOI requests to us, is on the OAIC website at http://www.oaic.gov.au/about-us/access-o....

In applying the FOI Act, decision makers have regard to guidelines about the operation of the Freedom of Information Act 1982 (FOI Act) issued by the Australian Information Commissioner. These Guidelines are available on our website at http://www.oaic.gov.au/freedom-of-inform....

Please feel free to contact me if you have any questions.

Yours sincerely

Charine Bennett
Director, Legal Services
[email address]
Ph: 1300 363 992 (freecall)
Fax: 02 9284 9666

Office of the Australian Information Commissioner - Protecting information rights – advancing information policy

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From: FOI
Office of the Australian Information Commissioner

Dear Mr Guy

Further to my previous email, I am writing to advise that I have needed to consult with affected third parties about documents you have requested. Therefore, the timeframe for processing your request is now 14 August 2013. Naturally, if it is possible to provide the response to you sooner I will do so.

Yours sincerely

Charine Bennett
Director, Legal Services
Ph: 1300 363 992
Fax: 02 9284 9666

Office of the Australian Information Commissioner - Protecting information rights – advancing information policy

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From: Geordie Guy

Delivered

Dear Charine,

Thankyou for your correspondence, I look forward to further information when it is available.

Yours sincerely,

Geordie Guy

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From: FOI
Office of the Australian Information Commissioner


Attachment FOIREQ13 00024 2013 08 FOI Decision 13 August 2013.pdf
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Attachment FOIREQ13 00024 Schedule A.pdf
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Attachment Binder1.pdf
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Dear Mr Guy

Please find attached a copy of my decision on your FOI request, a schedule of documents and documents released in accordance with your request.

Information about your review rights is included.

Yours sincerely

Charine Bennett | Director | Legal Services and Record Management
Office of the Australian Information Commissioner  
GPO Box 2999 Canberra ACT 2601 | www.oaic.gov.au
02 6239 9170| [email address]

Protecting information rights – advancing information policy

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From: Geordie Guy

Delivered

Dear Charine,

Thankyou for completing this request. I understand that your role as FOI officer for OAIC is now complete however I have a question about the OAIC and its FOI process which while outside of your obligations in your role, I was hoping you'd answer.

Does the act or any other act or instrument, ever create a circumstance where the OAIC can withhold documents and be excused from revealing they have done so? Regardless of whether it was the case here, can an OAIC FOI officer for any reason (national security seems like a good example) by authorised to advise that no documents fall within the scope of a request or exclude documents from the scope of a request, in order to conceal their existence?

Yours sincerely,

Geordie Guy

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From: FOI
Office of the Australian Information Commissioner

Dear Geordie

I am happy to provide further information about your query about the FOI Act and circumstances where an agency can deal with a request without revealing the existence of documents. I note that this is not specific to the OAIC.

The FOI Act does make provision for agencies dealing with FOI requests to refuse to confirm or deny the existence of documents. Section 25 of the FOI Act provides that agencies do not need to give information about the existence of documents in another document, such as a s26 notice (the FOI decision or schedule of documents), if including that information would cause them to be exempt on the grounds set out in ss 33 (national security, defence, int relations), 37(1) documents affecting law enforcement or s45A (parliamentary budget office documents). If this is the case, the agency may instead give the applicant notice in writing that it neither confirms nor denies the existence of the document, but if the document existed it would be exempt. Section 25 is only used in exceptional circumstances. A decision under s25 is deemed to be a notice of a decision to refuse access on the ground that the document is exempt under s 33, 37(1) or 45A and is a reviewable decision. I refer you to the FOI Guidelines issued by the Australian Information Commissioner (http://www.oaic.gov.au/freedom-of-inform... ). Paragraphs 5.43 to 5.46 refer, also 8.44-8.46.

Part 3 of the Guidelines also discuss circumstances in which requests for documents of certain agencies or agency activities must be transferred under s 16 of the FOI Act (refer paragraphs 3.87 - 3.89) including the transfer of requests without revealing the existence of documents. Where an agency or minister receives a request for access to a document which:
- originates from the bodies or agencies listed in Parts I and II of Schedule 2 to the FOI Act or from a body corporate established under the legislation listed in part 3 of Schedule 2, and
- is more closely connected with the functions of that other body or agency
the transferring agency must transfer the request to the responsible department of state (s16(2)) or specified receiving agency (s16(3)).

In any FOI request, there is always a question of interpretation of the scope of the request according to its terms. It can be useful to have a discussion about this with the agency when making the request, and it is useful to provide a phone contact to facilitate this. Where applicants consider that more documents should exist, they may seek to make a new request with different terms or seek review.

In considering the extent to which the OAIC might be expected to hold any such documents, you may find it useful to consider information about the OAIC's functions and powers as described in our corporate information on the OAIC website and the Australian Information Commissioner Act 2010, which sets out the functions and powers of the information officers.

I hope this information is of assistance to you. As I indicated in the decision, I would be happy to talk with you about this.

Yours sincerely

Charine Bennett | Director | Legal Services and Record Management
Office of the Australian Information Commissioner  
GPO Box 2999 Canberra ACT 2601 | www.oaic.gov.au
02 6239 9170| [email address]

Protecting information rights – advancing information policy

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From: Caren Whip
Office of the Australian Information Commissioner


Attachment MJ FOIREQ13 00048 Decision.pdf
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Dear MJ

 

Please find attached a copy of my decision on your FOI request.
Information about your review rights is included.

 

Yours sincerely

 

 

Caren Whip | Assistant Director | Legal Services|

Office of the Australian Information Commissioner |

GPO Box 5218 SYDNEY NSW 2001 |[1]www.oaic.gov.au|

Enquiries: 1300 363 992 | Fax: +61 2 9284 9666 |

 

Protecting information rights – advancing information policy

 

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References

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1. http://www.oaic.gov.au/

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From: Geordie Guy

Delivered

Dear Caren,

Thankyou for the Thursday giggle in what has been a tough week, but this correspondence appears to be intended for someone else.

Hope there was nothing too private in it.

Yours sincerely,

Geordie Guy

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From: Caren Whip
Office of the Australian Information Commissioner

Dear Mr Guy

Thank you for your email and bringing this error to my attention. The response has now been sent to the correct Right to Know address.

Thank you again for your assistance.

Kind Regards

Caren Whip | Assistant Director | Legal Services and Records Management|
Office of the Australian Information Commissioner |
GPO Box 5218 SYDNEY NSW 2001 |www.oaic.gov.au|
Enquiries: 1300 363 992 | Fax: +61 2 9284 9666 |

Protecting information rights – advancing information policy

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