Australians killed in Yemen by US Drones

Culley Palmer made this Freedom of Information request to Department of Foreign Affairs and Trade

The request was partially successful.

From: Culley Palmer

Delivered

Dear Department of Foreign Affairs and Trade,

I hereby request access, under the Freedom of Information Act 1982, to:

1. Copies of any communications between DFAT and any other
Government Departments, Agencies or individuals, including foreign Governments and Agencies, discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen;

2. Copies of all briefings, communications, forms, reports or notes discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen.

For reference, I have provided a link to a news report on the death of Australian Citizen Christopher Havard and one other Australian citizen, within Yemen in 2014:

http://www.abc.net.au/7.30/content/2014/...

I request that all costs for all aspects of the processing of this request be waived on the grounds that the release of this information is in the public interest.

Regards,

Culley Palmer

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From: FOI
Department of Foreign Affairs and Trade

Our Ref: 1501-1060

Dear Mr Palmer

Re: Freedom of Information (FOI) Request

Thank you for your email dated 11 January in which you seek access under the Freedom of Information Act 1982 to:

1. Copies of any communications between DFAT and any other Government Departments, Agencies or individuals, including foreign Governments and Agencies, discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen;

2. Copies of all briefings, communications, forms, reports or notes discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen.

Searches are now being undertaken in relevant areas of the Department for documents relevant to your request. I will contact you again once the searches have been completed.

Timeframe for receiving your decision:
We received your request on 11 January and the 30 day statutory period for processing your request commenced from the day after that date. You should therefore expect a decision from us by 11 February. The period of 30 days may be extended in certain circumstances. We will advise you if there is any extension of time.

Scope of request:
If it emerges that the scope of your request is unclear or is too large for processing, the Department will contact you to discuss re-scoping the request.

Exclusion of officers’ names and contact details:
It is the Department’s policy to withhold the names and contact details of officers not in the Senior Executive Service (SES) within the Department and other agencies contained within documents that fall within scope of the request. If you require the names and contact details of non-SES officers please let us know at [DFAT request email] so the decision-maker may consider; otherwise we will take it that you agree to that information being excluded from the scope of your request.

Charges:
Please note that the Department issues charges for processing FOI requests. We will advise you of these charges when we are in a position to estimate the resources required to process your request.

Timing of release:
As the subject matter of your request will require DFAT to upload any documents released to you to the Department’s FOI Disclosure Log, I take this opportunity to advise you that the Department’s policy is to upload released documents within one business day of your receipt of the documents.

Personal Information:
Your personal information has been collected by the Department as a result of your correspondence, and will be used in order to process your FOI request. Your personal information is protected by law, including the Privacy Act 1988. The Department’s privacy policy is available at dfat.gov.au/privacy.html and contains information about access to or correction of your personal information, and how you may complain about a breach of your privacy.

Please note that if we need to consult with other people regarding release of the documents you have requested, we may need to disclose your personal information. When we consult with other people about a request you have made, it may be apparent to those people that you have made a request, even if we do not disclose your identity. If you have concerns about the Department consulting with other people about your request, please let us know your concerns.

Should you require any further information, please do not hesitate to contact me on (02) 6261 3470, or by return email.

Please note a copy of this email has been sent to Ms Indra McCormick, Director, Freedom of Information and Privacy Law Section, for her information.

Yours sincerely

Ada Cheung
Assistant Director
Department of Foreign Affairs and Trade
Freedom of Information & Privacy Law Section
E [email address]
Corporate Legal Branch
T +61 2 6261 3470
Legal Division
W W www.dfat.gov.au

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From: FOI
Department of Foreign Affairs and Trade

Our ref: 1501-F1060

Dear Mr Palmer

Re: Freedom of Information (FOI) Request

Thank you for your email of 11 January 2015 seeking access under the Freedom of Information Act 1982 (the FOI Act) to:

1. Copies of any communications between DFAT and any other Government Departments, Agencies or individuals, including foreign Governments and Agencies, discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen;
2. Copies of all briefings, communications, forms, reports or notes discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen.

DFAT intends to refuse the request as currently framed on the grounds that the work involved in processing it would substantially and unreasonably divert DFAT’s resources from its other operations.

Practical refusal reason

Notice is hereby given under section 24AB(2) of the FOI Act of an intention to refuse to grant access to the documents sought. The practical refusal reason is that the work involved in processing the request would substantially and unreasonably divert the resources of DFAT from its other operations.

In deciding that this practical refusal reason exists, I have given consideration to how DFAT could proceed to process your request, and the time and resources that would be involved in doing so.

Searches conducted by the relevant line areas in the Department have identified a large number of documents (conservatively estimated at well over 800 pages) within the scope of your request, and it is too large for processing.

Time required to process your request

Based on the number of pages involved, including a percentage of exempt pages, I have estimated that over 140 hours of staff time would be required to process your request in its current form, which would result in a very substantial processing fee.

Processing this request would, in my view, be a substantial and unreasonable diversion of DFAT’s resources within the meaning of s.24AA(1).

Consultation process

I am the DFAT officer with whom you may consult if you wish to revise the request to a narrower scope such that it could in fact be processed. I may be contacted by email at: [DFAT request email] and am happy to provide you so far as is reasonably practicable with any information that I can to assist in amending your request under the FOI Act.

In accordance with s24AB(2), the consultation period during which you may consult with me to revise the scope of your request is 14 days after the day you are given this notice. Please note that if you do not take this opportunity to consult, in accordance with s24AB(7)(a), your request will be taken to have been withdrawn under s24AB(6).

In considering ways in which you could narrow the scope of your request, you may wish to consider:

- providing a specific date range; and
- specifying the document type (eg ministerial submissions, diplomatic cables); and
- excluding the personal information of the individuals concerned, noting personal information may be exempt from disclosure on personal privacy grounds.

By identifying the category of document you are most interested in, this will ensure that our searches focus on the material that is most relevant to your enquiry.

Please note that during this period of consultation, the statutory timeframe under section 15(5) of the FOI Act for the processing of your request is on hold (see section 24AB(8) for details).

A copy of sections 24, 24AA and 24AB of the FOI Act follows for your information.

Yours sincerely

Ada Cheung
Acting Director
Freedom of Information and Privacy Law Section


Attachment A
24 Power to refuse request—diversion of resources etc.
(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a) must undertake a request consultation process (see section 24AB); and
(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists—the agency or Minister may refuse to give access to the document in accordance with the request.
(2) For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a) the requests relate to the same document or documents; or
(b) the requests relate to documents, the subject matter of which is substantially the same.
24AA When does a practical refusal reason exist?
(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i) in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii) in the case of a Minister—would substantially and unreasonably interfere with the performance of the Minister’s functions;
(b) the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
(2) Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
(a) identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
(b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
(i) examining the document; or
(ii) consulting with any person or body in relation to the request;
(c) making a copy, or an edited copy, of the document;
(d) notifying any interim or final decision on the request.
(3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
(a) any reasons that the applicant gives for requesting access; or
(b) the agency’s or Minister’s belief as to what the applicant’s reasons are for requesting access; or
(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
24AB What is a request consultation process?
Scope
(1) This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2) The agency or Minister must give the applicant a written notice stating the following:
(a) an intention to refuse access to a document in accordance with a request;
(b) the practical refusal reason;
(c) the name of an officer of the agency or member of staff of the Minister (the contact person) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
(4) For the purposes of subsection (3), reasonable steps includes the following:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the request.
Extension of consultation period
(5) The contact person may, with the applicant’s agreement, extend the consultation period by written notice to the applicant.
Outcome of request consultation process
(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
(7) The request is taken to have been withdrawn under subsection (6) at the end of the consultation period if:
(a) the applicant does not consult the contact person during the consultation period in accordance with the notice; or
(b) the applicant does not do one of the things mentioned in subsection (6) before the end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note: Paragraph 15(5)(b) requires that an agency or Minister take all reasonable steps to notify an applicant of a decision on the applicant’s request within 30 days after the request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the agency or Minister to undertake a request consultation process once for any particular request.

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Culley Palmer left an annotation ()

I note that DFAT suggests I ask them to exclude names etc, which I could do.

I also could ask them to exclude duplicate documents.

Not sure what else to do to proceed with this request.

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Evelyn Doyle left an annotation ()

Hi
As well as excluding names and duplicates, you might try narrowing the scope of your request. The DFAT File List might point the way: http://www.dfat.gov.au/dept/newfiles/

There is a file listed on page 159 - File No. 14/20471 "HUMAN RIGHTS - MONITORING - Drones, Issues and correspondence". This may possibly contain relevant documents in relation to Yemen. You could narrow the request to just this file in the first instance. Of course it might not produce the information you seek.

Or narrow it to one set of communications ie. correspondence between the Australian Embassy in Saudi Arabia (which oversees Yemen according to website); or the US Government in relation to deaths of Australians by US drones. Think about the specific information you are after.

If are just interested in the number of Australian deaths by US drones, DFAT may be able to provide you with the number without the need for an FOI. It would be remiss if DFAT was not able to supply you with this figure given the gravity of the events. It would also be reasonable to expect they would have quick access to this information. Good luck.

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Culley Palmer left an annotation ()

Thank you Evelyn, this is very helpful.

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From: Culley Palmer

Delivered

Dear Ada Cheung,

Thank you for your reply.

I acknowledge DFAT's intention to refuse my request based on the large number of documents covered by the request.

I wish to narrow the scope of the request and proceed with it as a request under the Freedom of Information Act of 1982.

I propose to narrow the scope as follows:

1) exclude duplicate documents

2) exclude drafts

3) exclude the personal information of the individuals concerned (I note personal information may be exempt from disclosure on personal privacy grounds).

4) limit the request to all communications sent to or from the Australian Embassy in Saudi Arabia

My revised request would therefore be for:

All communications sent to or from the Australian Embassy in Saudi Arabia, discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel Vehicle (Drone) in Yemen; excluding drafts, duplicate documents, and the personal information of the individuals concerned.

Would you please advise me as to the feasibility of proceeding with the request if revised in this manner.

Regards,

Culley Palmer

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Culley Palmer left an annotation ()

I note that the consultation period is limited to 14 days. Should I send a message asking for a reply - to give me a chance to revise the request further before the deadline if necessary?

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From: Culley Palmer

Delivered

Dear Ada Cheung,

I note that I received the Department's notice to issue a practical refusal on January 19th. I note that the timeframe for consultation is 14 days from the day after I received the notice. That works out to be February 3rd, which is today.

Would you please acknowledge my intention to consult with the Department to revise the scope of the request, and to proceed with the request under the Freedom of Information Act, 1982.

Would you please provide me with an update of the status of my request.

Regards,

Culley Palmer

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From: FOI
Department of Foreign Affairs and Trade

FOI Ref: 1501-F1775
File No: 15/1775

Dear Mr Palmer

Thank you for your email of 21 January 2015 in which you re-scoped your FOI request to:

All communications sent to or from the Australian Embassy in Saudi Arabia, discussing or mentioning the killing of any Australian citizen by a US Unmanned Aeriel (sic) Vehicle (Drone) in Yemen; excluding drafts, duplicate documents, and the personal information of the individuals concerned.

Preliminary searches for documents relevant to your revised request have been completed.

Your request has captured 75 consular records. These records comprise personal information about individual consular clients and their family members. As you have expressly excluded personal information from your request, these records are excluded from the scope of your request.

In any event, if we were to process this request, it is likely that this personal information would be exempt in full for reasons of personal privacy. Processing charges would apply.

Under the circumstances, I would be grateful if you could advise whether you wish to continue with your request.

Yours sincerely

Indra McCormick
Director
Freedom of Information and Privacy Law Section

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From: Culley Palmer

Delivered

Dear Indra McCormick,

I'm a little confused by your reply. You say searches returned some 75 documents, but you note they do not fit within the scope of my request. You then suggest that I have the option of proceeding with the request. How can I proceed with the request if your searches returned no documents within the scope of the request?

Please note that I requested that the personal information of the individuals concerned be excluded from the requests scope.

Please note that I did not request an exclusion of all documents which include personal information.

Could you please verify that this is the way the Department has interpreted the scope of my request.

Could you please estimate how many of the documents are comprised entirely of personal information.

Are any of the documents diplomatic cables?

If so, how many?

If so, do the diplomatic cables consist entirely of personal information?

Regards,

Culley Palmer

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Culley Palmer left an annotation ()

I have sent the above message but Right To Know still says

"Department of Foreign Affairs and Trade is waiting for your clarification. Please send a follow up message."

I also received an email to this effect today.

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Ben Fairless left an annotation ()

Hi Culley,

You can update the status of the request at the bottom of the request (under the heading "Culley Palmer only:"). You will then get the green box to choose the new status :)

Cheers,

Ben
Right to Know Volunteer

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Culley Palmer left an annotation ()

Thanks!

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From: Culley Palmer

Delivered

Dear FOI,

Would you please acknowledge my email dated February 4th. Would you please address the questions I asked in that email too, please.

Would you please advise me on the the status of my FOI request.

Regards,

Culley Palmer

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From: FOI
Department of Foreign Affairs and Trade


Attachment FOI Charges Letter Mr Palmer.PDF.pdf
73K Download View as HTML


FOI Ref: 1501-F1060

File No: 15/1775

 

 

Dear Mr Palmer

 

Please find attached a charges letter in relation to your FOI request.

 

Yours sincerely

 

 

+------------------------------------------------------------------------+
|Jennifer Streat | |
| |  |
|Department of Foreign Affairs and Trade | |
|------------------------------------------------------------------------|
|Freedom of Information and Privacy Law |     E |  | |
|Section |[email address]| |
|------------------------------------------+-----------------------------|
|Corporate Legal Branch |     T |  +61 2 6261 1142 |
|------------------------------------------------------------------------|
|Legal Division |W |  [1]www.dfat.gov.au |  |
|--------------------------------------------+------------------------+--|
+------------------------------------------------------------------------+

 

 

 

 

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Culley Palmer left an annotation ()

DFAT have estimated $30 to process 3 documents (comprising 8 pages).

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Culley Palmer left an annotation ()

I successfully crowd-funded the processing fee at:

http://www.pozible.com/project/191017

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From: Culley Palmer

Delivered

Dear FOI,

Thank you for your email.

I have transferred the processing fee by direct debit.

Regards,

Culley Palmer

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From: FOI
Department of Foreign Affairs and Trade

FOI Ref: 1501-F1060
File No: 15/1775

 

 

Dear Mr Palmer

 

Thank you for providing advice of payment.  Your SAP reference number is:
24717005.

 

Yours sincerely

 

 

+------------------------------------------------------------------------+
|Jennifer Streat | |
| |  |
|Department of Foreign Affairs and Trade | |
|------------------------------------------------------------------------|
|Freedom of Information and Privacy Law |     E |  | |
|Section |[email address]| |
|------------------------------------------+-----------------------------|
|Corporate Legal Branch |     T |  +61 2 6261 1142 |
|------------------------------------------------------------------------|
|Legal Division |W |  [1]www.dfat.gov.au |  |
|--------------------------------------------+------------------------+--|
+------------------------------------------------------------------------+

 

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From: FOI
Department of Foreign Affairs and Trade


Attachment Decision letter Mr Palmer.pdf
1.4M Download View as HTML

Attachment Culley Palmer docs for release.pdf
194K Download View as HTML


FOI Ref: 1501-F1060

File No: 15/1775

 

 

Dear Mr Palmer

 

With reference to your FOI request (FOI reference above refers), attached
please find the decision letter and documents to be released to you.

 

Yours sincerely

 

 

+------------------------------------------------------------------------+
|Jennifer Streat | |
| |  |
|Department of Foreign Affairs and Trade | |
|------------------------------------------------------------------------|
|Freedom of Information and Privacy Law |     E |  | |
|Section |[email address]| |
|------------------------------------------+-----------------------------|
|Corporate Legal Branch |     T |  +61 2 6261 1142 |
|------------------------------------------------------------------------|
|Legal Division |W |  [1]www.dfat.gov.au |  |
|--------------------------------------------+------------------------+--|
+------------------------------------------------------------------------+

 

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Things to do with this request

Anyone:
Department of Foreign Affairs and Trade only: