We don't know whether the most recent response to this request contains information or not – if you are Peter Timmins please sign in and let everyone know.

Background to the audit of Australian engagement with multilateral institutions

We're waiting for Peter Timmins to read a recent response and update the status.

Dear Department of Foreign Affairs and Trade,

Dear Department of Foreign Affairs and Trade,
This is an application under the Freedom of information Act for the following documents associated with the Audit report on Australia's engagement with key multilateral institutions. You refused access to the report in its entirety on 30 November (LEX2125):

1. The document in whatever form that records the message from the Prime Minister, PMO or Department of Prime Minister and Cabinet to the Department or to the Department via Minister’s office ‘tasking’ the Department to undertake the comprehensive audit.

2.The final document signed off by the Minister that those who undertook the audit took as setting the instructions or approval of the scope, terms of reference, timetable and other aspects of the work to be undertaken in preparing the audit.

3. Any document that includes the names of multinational organisations or governments with whom all or parts of the Audit report have been or are to be shared.

Yours faithfully,

Peter Timmins

FOI, Department of Foreign Affairs and Trade

1 Attachment

OFFICIAL

Our Ref: LEX 3065

 

Dear Mr Timmins

 

I refer to your email dated 7 December 2020 requesting access under the
Freedom of Information Act 1982 to:

 

“…the following documents associated with the Audit report on Australia's
engagement with key multilateral institutions. You refused access to the
report in its entirety on 30 November (LEX2125):

 

1. The document in whatever form that records the message from the Prime
Minister, PMO or Department of Prime Minister and Cabinet to the
Department or to the Department via Minister’s office ‘tasking’ the
Department to undertake the comprehensive audit.

 

2.The final document signed off by the Minister that those who undertook
the audit took as setting the instructions or approval of the scope, terms
of reference, timetable and other aspects of the work to be undertaken in
preparing the audit.

 

3. Any document that includes the names of multinational organisations or
governments with whom all or parts of the Audit report have been or are to
be shared.”

 

This e-mail sets out some information about how your request will be
processed by the Department of Foreign Affairs and Trade.

 

Searches are now being undertaken in relevant areas of the Department for
documents relevant to your request.

 

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.

 

Timeframe for receiving our decision:

We received your request on 7 December 2020 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 6 January 2021. 
The period of 30 days may be extended in certain circumstances.  We will
advise you if any extension of time is required.

 

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, we take
this opportunity to advise you that the Department’s policy is to upload
documents to the disclosure log on the same day as the documents are
released to you.

 

Exclusion of officials’ names and contact details:

It is the Department’s policy to withhold the mobile numbers of all
government officials, and the names and contact details of government
officials not in the Senior Executive Service (SES) or equivalent.  If you
require the mobile numbers of all government officials, or the names and
contact details of non-SES officials, please let us know at
[1][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.

 

Personal Information:

If we need to consult with other people or organisations regarding your
FOI request, we may need to disclose your personal information (e.g. your
name).  When we consult it may be apparent that you have made a request,
even if we do not disclose your identity.  Please let us know if you have
any concerns in this regard.  The Department’s privacy policy is available
at dfat.gov.au/privacy.html.

 

Should you require any further information, please do not hesitate to
contact us by return e-mail at [2][DFAT request email]

 

Kind regards

Danielle

 

DFAT FOI Team

[3]cid:image001.png@01D349A2.74F24380

Freedom of Information and Privacy Law Section
Legal Division | Department of Foreign Affairs and Trade
[4]DFAT.GOV.AU | [5]Twitter | [6]Facebook | [7]Flickr | [8]YouTube

 

 

 

 

References

Visible links
1. mailto:[DFAT request email]
2. mailto:[DFAT request email]
4. http://dfat.gov.au/pages/default.aspx
5. https://aus01.safelinks.protection.outlo...
6. https://aus01.safelinks.protection.outlo...
7. https://aus01.safelinks.protection.outlo...
8. https://aus01.safelinks.protection.outlo...

FOI, Department of Foreign Affairs and Trade

1 Attachment

OFFICIAL

Dear Mr Timmins

 

I refer to your email dated 7 December 2020.

 

I am writing to request an extension of time of 21 days to process your
request in accordance with section 15AA of the FOI Act. If you agree to
the extension, the revised due date for the request will be Wednesday, 27
January 2021. DFAT will endeavour to provide you with a decision in
response to the Request by that date.

 

While the decision in relation to this request is underway, the department
will be unable to finalise the request within the statutory timeframe due
to the significant number of public holidays over the forthcoming
Christmas/New Year period.

 

I appreciate this request is at short notice and I would be grateful if
you would please confirm your agreement to this request for an extension
by return email on or before COB 24 December 2020. Once I have your
agreement, I will advise the Office of the Australian Information
Commissioner.

 

Kind regards

Danielle

 

DFAT FOI Team

Freedom of Information and Privacy Law Section
Legal Division | Department of Foreign Affairs and Trade
[1]DFAT.GOV.AU | [2]Twitter | [3]Facebook | [4]Flickr | [5]YouTube

 

 

 

From: FOI
Sent: Tuesday, 8 December 2020 11:45 AM
To: '[FOI #6960 email]'
<[FOI #6960 email]>
Subject: FOI Request - Background to the audit of Australian engagement
with multilateral institutions [SEC=OFFICIAL]

 

OFFICIAL

Our Ref: LEX 3065

 

Dear Mr Timmins

 

I refer to your email dated 7 December 2020 requesting access under the
Freedom of Information Act 1982 to:

 

“…the following documents associated with the Audit report on Australia's
engagement with key multilateral institutions. You refused access to the
report in its entirety on 30 November (LEX2125):

 

1. The document in whatever form that records the message from the Prime
Minister, PMO or Department of Prime Minister and Cabinet to the
Department or to the Department via Minister’s office ‘tasking’ the
Department to undertake the comprehensive audit.

 

2.The final document signed off by the Minister that those who undertook
the audit took as setting the instructions or approval of the scope, terms
of reference, timetable and other aspects of the work to be undertaken in
preparing the audit.

 

3. Any document that includes the names of multinational organisations or
governments with whom all or parts of the Audit report have been or are to
be shared.”

 

This e-mail sets out some information about how your request will be
processed by the Department of Foreign Affairs and Trade.

 

Searches are now being undertaken in relevant areas of the Department for
documents relevant to your request.

 

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.

 

Timeframe for receiving our decision:

We received your request on 7 December 2020 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 6 January 2021. 
The period of 30 days may be extended in certain circumstances.  We will
advise you if any extension of time is required.

 

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, we take
this opportunity to advise you that the Department’s policy is to upload
documents to the disclosure log on the same day as the documents are
released to you.

 

Exclusion of officials’ names and contact details:

It is the Department’s policy to withhold the mobile numbers of all
government officials, and the names and contact details of government
officials not in the Senior Executive Service (SES) or equivalent.  If you
require the mobile numbers of all government officials, or the names and
contact details of non-SES officials, please let us know at
[6][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.

 

Personal Information:

If we need to consult with other people or organisations regarding your
FOI request, we may need to disclose your personal information (e.g. your
name).  When we consult it may be apparent that you have made a request,
even if we do not disclose your identity.  Please let us know if you have
any concerns in this regard.  The Department’s privacy policy is available
at dfat.gov.au/privacy.html.

 

Should you require any further information, please do not hesitate to
contact us by return e-mail at [7][DFAT request email]

 

Kind regards

Danielle

 

DFAT FOI Team

[8]cid:image001.png@01D349A2.74F24380

Freedom of Information and Privacy Law Section
Legal Division | Department of Foreign Affairs and Trade
[9]DFAT.GOV.AU | [10]Twitter | [11]Facebook | [12]Flickr | [13]YouTube

 

 

 

 

References

Visible links
1. http://dfat.gov.au/pages/default.aspx
2. https://aus01.safelinks.protection.outlo...
3. https://aus01.safelinks.protection.outlo...
4. https://aus01.safelinks.protection.outlo...
5. https://aus01.safelinks.protection.outlo...
6. mailto:[DFAT request email]
7. mailto:[DFAT request email]
9. http://dfat.gov.au/pages/default.aspx
10. https://aus01.safelinks.protection.outlo...
11. https://aus01.safelinks.protection.outlo...
12. https://aus01.safelinks.protection.outlo...
13. https://aus01.safelinks.protection.outlo...

Dear FOI,
If a decision is underway have to wonder about the need for a 21 day extension. However I'm no Scrooge so yes agree. Hope this sticks as my recent experience suggests deadlines don't amount to much.

I don't agree that the names of officers below SES level is excluded from the request.
As you know your 'policy' is inconsistent with the guidance issued by the OAIC. Names of officials wherever they appear are covered. I do not seek contact details.

Happy Christmas.

Yours sincerely,

Peter Timmins

FOI, Department of Foreign Affairs and Trade

1 Attachment

OFFICIAL
FOI Reference: LEX3065
File Number: 20/33556

Dear Mr Timmins

Please find attached a notice of charges issued under the Freedom of Information Act 1982 (FOI Act) for your FOI request, reference LEX3065.

Should you have any questions, please do not hesitate to contact us by return email.

Yours sincerely
Joel

DFAT FOI Team
Freedom of Information and Privacy Law Section
Legal Division | Department of Foreign Affairs and Trade
DFAT.GOV.AU | Twitter | Facebook | Flickr | YouTube

This email and any attachments may contain confidential information or legal advice over which legal professional privilege can be claimed. Such privilege is not waived and you should ensure that, in your handling of the advice, you avoid waiving privilege. Please consult the author of the advice if unsure about appropriate handling.

show quoted sections

Dear FOI,
In response to your email and the decision to impose a charge, I have sent today the requested deposit ($33.83) by direct transfer to the nominated bank account, and make this application for internal review of the decision -an ‘access refusal decision" under Section 53A(e).

In my submission the charge "should otherwise be.. not imposed" (s 29(1)(f)(ii)).
.
DFAT's stated position, in this case in your email of 8 December and in what appear to be standard acknowledgments to other applications, is as follows:
"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.”

The imposition of charges in all cases where the request is for documents other than those that contain personal information of the applicant is inconsistent with the terms of the legislation and the guidance from OAIC. (Part 4 FOI Guidelines- Section 93A (2) provides "For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner.”)

According to the OAIC (Guidelines Part 4):

"Under s 8 of the Charges Regulations, an agency or minister has a discretion to impose or not impose a charge, or impose a charge that is lower than the applicable charge. In exercising that discretion, the agency or minister should take account of the ‘lowest reasonable cost’ objective stated in the objects of the FOI Act (s 3(4)):… functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.[1]

4.4 Agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charge under the FOI Act. That is, an agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency of processing the request, it may generally be more appropriate not to impose a charge.

……
4.6 The objects of the FOI Act provide the basis for the following principles relevant to charges under the FOI Act:
………Charges are discretionary and should be justified on a case by case basis.

4.7 An agency should ensure that the notice to an applicant of a charge fully explains and justifies the charge.
….

4.20 Agencies and ministers should be guided by the ‘lowest reasonable cost’ objective in s 3 of the FOI Act in deciding whether a charge specified in the Charges Regulations is warranted; there is no obligation on an agency to charge for access. Agencies and ministers may need to balance a number of factors in reaching decisions concerning access to documents and related charges. The overall impact of charges in recovering costs to government does not, of itself, justify imposing a charge for an individual request.[6] Further, imposing a charge can deter members of the public from seeking access to documents and can delay access."

Issues for consideration:

1. The decision maker has not exercised a discretion conferred. A discretion conferred by an act or regulation should be exercised, and exercised reasonably. A blanket policy or procedure applied in all cases to impose a charge leaves no room for the proper exercise of the discretion. OAIC Guidance is that charges are discretionary and should be justified on a case by case basis, and that the agency "should have regard to the lowest reasonable cost to the applicant, to the agency, and the Commonwealth as a whole.."

Current circumstances in dealing with the Pandemic impose a strain on resources.

In this case (and others) where the charge is a relatively small amount, the cost of calculating, collecting, defending or (potentially) reviewing a decision to impose the charge, and dealing (potentially) with a separate submission to reduce or waive the charge, is likely to exceed by a significant margin the cost to the agency in staff time of those tasked with processing the application.

The lowest reasonable cost to the agency in this case is not to impose the charge.

2.The Guidance makes clear there is no obligation to impose a charge. The decision to do so in this case reflects a broader misconception on the part of DFAT decision makers about the role of charges. For example, the Department in correspondence with me incorrectly asserts that charges "are a vital component to the FOi process that make it sustainable and appropriately balanced from a public policy perspective….. Processing charges are designed to ensure that the Australian community recoups a proportion of the costs of processing these types of FOi requests, given that processing such requests diverts significant resources from policy areas away from other priorities. (See notification of a decision regarding waiver (LEX 2125)) This is inconsistent with the Guidelines.

3. The decision maker did not provide information that "fully explains and justifies the charge.” [Guidance 4.7-Section 29 FOI act- agency to give to the applicant a written notice stating (b) the.. preliminary assessment of the amount of the charge, and the basis on which the assessment is made.”)

4.The Department notified me of the decision to impose a charge 46 days after the application was submitted and five days before the extended deadline for making a decision on access to the requested documents.This is inconsistent with the Guidelines. (4.52 "Agencies should give applicants an early indication of the likely cost of processing their request.”)

I look forward to hearing from you.

Yours sincerely,

Peter Timmins

Peter Timmins left an annotation ()

I'm contesting the DFAT position to impose a charge in all cases where the applicant seeks access to documents other than those that contain personal information.

Shelley Napper,

5 Attachments

Our reference: RQ21/00461

Agency reference: LEX3065

Mr Peter Timmins

Sent by email: [FOI #6960 email]

Extension of time application by Department of Foreign Affairs and Trade

Dear Mr Timmins

 

I write to advise that on 23 February 2021, the Office of the Australian
Information Commissioner (the OAIC) received an application from the
Department of Foreign Affairs and Trade (the Department) for an extension
of time, to process your FOI request dated 7 December 2020.

 

The Department has applied for an extension of time under s 15AB of the
Freedom of Information Act 1982 (Cth) because your request is considered
to be complex.

 

The Department has advised the OAIC that:

 

o you have previously agreed to an extension of time under s 15AA of the
FOI Act
o from the date of receipt of the request, the department has engaged
with the relevant business areas who have undertaken searches and
identified relevant documents
o the documents have undergone preliminary assessment and we have
undertaken consultation with affected government agencies
o the FOI request is complex as it relates to material associated with
the audit
o report on Australia's engagement with key multilateral institutions
delays in document retrieval and consultations, and
o the material sought by the FOI request includes operationally
sensitive material which requires careful consideration.

 

The Department has requested an extension of 28 days to 23 March 2021. I
will take any comments you may have to make into account when deciding the
application.

 

Please respond to this email by close of business 1 March 2021. If I do
not hear from you by this date, I will proceed to make a decision on the
basis of the information provided to me by the Department.

 

You will be notified of the decision once the matter has been finalised.

 

Further information about extension of time requests may be found on our
website at [1]Extensions of time.

Contact

If you have any questions, please contact me on (02) 9284 9721 or via
email [2][email address]. In all correspondence please include
reference number at the top of this email.

 

Kind regards

 

[3][IMG]   Shelley Napper  |  Assistant
Director

Freedom of Information

Office of the Australian
Information Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [4]oaic.gov.au

+61 2 9284 9721  | 
[5][email address]
[9]Subscribe [10]Subscribe to
[6]Facebook | [7]LinkedIn | [8]Twitter |   icon Information
Matters

 

 

show quoted sections

References

Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
2. mailto:[email address]
3. https://www.oaic.gov.au/
4. http://www.oaic.gov.au/
5. mailto:[email address]
6. http://www.facebook.com/OAICgov
7. https://www.linkedin.com/company/office-...
8. https://twitter.com/OAICgov
10. https://www.oaic.gov.au/media-and-speech...

Dear Shelley Napper,

There is no case on the information you have sent me for the OAIC to grant an extension of time.

A. Complex?
DFAT makes the application asserting it is complex because
It relates to material associated with the audit report on Australia's engagement with key multilateral institutions,
(Comment: The application seeks access to
1.The document tasking the Department to undertake the comprehensive audit.
The Prime Minister in a speech PM Lowy speech on 3 October 2019
announced "I have tasked the Department of Foreign Affairs and Trade to come back to me with a comprehensive audit of global institutions and rule-making processes where we have the greatest stake."
The Minister for Foreign Affairs in a speech on 16 June 2020 said "In October last year, well before COVID-19 emerged, Prime Minister Morrison commissioned an audit by my department of Australia's engagement in key multilateral institutions.”
Locating and assessing the 'tasking' document(s) doesn’t sound complex or complicated

2 The final document that those who undertook the audit took as setting the instructions or approval of the scope, terms of reference, timetable and other aspects of the work to be undertaken in preparing the audit.
(Comment: In essence the settled terms of reference for the work to be undertaken.
This doesn’t sound complex or complicated)

3.Any document that includes the names of multinational organisations or governments with whom all or parts of the Audit report have been or are to be shared.
(Comment: Officers in relevant areas would know if any decision had been made to share any information. They would know of there is no such document or if it exists in the system)

B. Delays in document retrieval and consultations,
(Comment DFAT advised on 8 December that "searches are now being undertaken in relevant areas of the Department for documents relevant to your request.” That’s 77 days ago-retrieval still delayed? Consultation with other agencies-not required but seen as good practice-delayed?

C The material sought by the FOI request includes operationally sensitive material which requires careful consideration.
(Comment: “Operationally sensitive “information is defined in a number of acts of the Commonwealth. Its not an exemption in itself, neither is a document with a security classification but of course may require 'careful consideration.'

Other reasons why extension should not be granted.

OAIC Guidance is that an agency should ensure that the EOT application is right the first time.
On 24 December I agreed to an extension of 21 days requested by the Department on 22 December. I’m unsure whether DFAT gave notice as soon as practicable after the agreement- I didn’t receive a copy. The guidance states " If the agency does not tell the OAIC, the extension is invalid.”

Guidance is that an agency should keep the applicant in the loop: "It is good practice to keep an FOI applicant informed of developments with their application, including requests to the OAIC for an extension. You may choose to send the applicant a copy of your EOT application. This streamlines the process and can speed up OAIC response time, especially if the OAIC needs to consult the applicant about the extension. The OAIC will regard the applicant's agreement to the extension favourably in making its decision.
DFAT did not and has not communicated with me about this application to the OAIC. The only communication recently has been to notify me of charges. I have paid the deposit and lodged an application for internal review of that decision. See my email of 18 February.

The application for extension should be refused.

I would hope such a decision prompts early finalisation of processing the application. I'm not heartened by recent experience.

With application LEX2125 now with OAIC seeking internal review, DFAT sought extension of time. The OAIC notified me on 18 September that the application was refused. DFAT appeared to have no regard to the decision and determined the application, refusing access on 30 November.
Hardly encouraging.

Yours sincerely,

Peter Timmins

Peter Timmins left an annotation ()

My submission to OAIC that the DFAT application for extension of time should be refused

Shelley Napper,

6 Attachments

Our reference: RQ21/00461

Agency reference: LEX3065

Mr Peter Timmins

 

Sent by email: [1][FOI #6960 email]

Extension of time under s 15AB

Dear Mr Timmins

Please find attached my decision of today’s date.

 

Kind regards

 

[2][IMG]   Shelley Napper  |  Assistant
Director

Freedom of Information

Office of the Australian
Information Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [3]oaic.gov.au

+61 2 9284 9721  | 
[4][email address]
[8]Subscribe [9]Subscribe to
[5]Facebook | [6]LinkedIn | [7]Twitter |   icon Information
Matters

 

 

show quoted sections

References

Visible links
1. mailto:[FOI #6960 email]
2. https://www.oaic.gov.au/
3. http://www.oaic.gov.au/
4. mailto:[email address]
5. http://www.facebook.com/OAICgov
6. https://www.linkedin.com/company/office-...
7. https://twitter.com/OAICgov
9. https://www.oaic.gov.au/media-and-speech...

Peter Timmins left an annotation ()

OAIC rejects DFAT application for extension of time.

Dear Shelley Napper,
Thank you.
While they won't have extended time to make a determination, in a related development
DFAT has imposed a charge.
This seems out of step with OAIC Guidance that the lowest reasonable cost to the agency and the applicant should be a guiding principle.
The time and cost of collecting the deposit of $33 (that has been paid) far exceeds the amount collected.
In these difficult times there are easier more efficient means of processing an application than DFAT's preferred method.

Yours sincerely,

Peter Timmins

Shelley Napper,

5 Attachments

Our reference: RQ21/00461

Agency reference: LEX3065

 

Dear Mr Timmins

 

Thank you for your email in relation to charges and the Department of
Foreign Affairs and Trade (the Department).

 

In relation to the above matter, the Department’s extension of time
application was refused, and the decision was therefore a deemed access
refusal on 23 February 2021.

 

As such, I note that the Freedom of Information (Charges) Regulations 2019
provides if an applicant is not notified of a decision on a request within
the statutory time limit (including any extension of time), the agency or
minister cannot impose a charge for providing access, even if the
applicant was earlier notified that a charge was payable (regs 7(2), (3)).
This extension under s 15AC of the FOI Act does not mean that charges can
be reimposed and any deposit you have paid should be refunded.

 

It is also open to you to seek Information Commissioner review (IC review)
of a charges decision once provided to you by an agency, noting that the
preliminary assessment of charges is not a reviewable decision under the
FOI Act.

 

Kind regards

 

[1][IMG]   Shelley Napper  |  Assistant
Director

Freedom of Information

Office of the Australian
Information Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [2]oaic.gov.au

+61 2 9284 9721  | 
[3][email address]
[7]Subscribe [8]Subscribe to
[4]Facebook | [5]LinkedIn | [6]Twitter |   icon Information
Matters

 

 

show quoted sections

We don't know whether the most recent response to this request contains information or not – if you are Peter Timmins please sign in and let everyone know.