Dear Australian Federal Police,

This is a request under the Freedom of Information Act 1982.

1. Please provide all documents created, accessed or held by the AFP and it's staff that relate to, or are associated with, or an outcome of Mr David McBride's 2014 complaint to the AFP regarding his inital whistle-blower disclosure about the ADF.

2. Please provide all documents created, accessed or held by the AFP and it's staff, relating to, associated with, or an outcome of the decision or advice as to whether or not to charge ABC journalist, Mr Dan Oakes.

Yours faithfully,

Steve McKenzie
Journalists for Freedom

FOI, Australian Federal Police

2 Attachments

OFFICIAL

 

Dear Mr McKenzie,

               

YOUR FREEDOM OF INFORMATION REQUEST 2021/308

 

I refer to your request dated 18 November 2020, seeking access to
documents under the Freedom of Information Act 1982 (the Act) as follows:

 

1. All documents created, accessed or held by the AFP and its staff that
relate to, or are associated with, or an outcome of Mr David McBride's
2014 complaint to the AFP regarding his initial whistle-blower disclosure
about the ADF.

 

2. All documents created, accessed or held by the AFP and its staff,
relating to, associated with, or an outcome of the decision or advice as
to whether or not to charge ABC journalist, Mr Dan Oakes.

 

Timeframe

 

Your request was received by the AFP on 18 November 2020, and the 30 day
statutory period for processing your request commenced from that date. The
due date for your request is 18 December 2020.

 

As the AFP focuses its efforts on managing the impact of COVID-19 on its
critical operations, our ability to process requests for information under
the Act may be affected or not delivered within expected timeframes. We
apologise for the inconvenience and appreciate your patience during this
period. Should this occur we will contact you as soon as practicable, and
seek to extend processing timeframes in accordance with the Act.

 

Information irrelevant to the scope of your request

 

The AFP, in its management of FOI requests, excludes the following
information on the basis that is irrelevant to the scope of a request:

 

-      duplicate documents, including duplicate emails (the AFP will only
provide emails where they form a final email chain and the
authors/recipients are contained within the final email); and

-      information that is publicly available, for example, newspaper
articles, online publications including information available on the AFP
Information Publication Scheme and the AFP disclosure log.

 

Please advise this office that you also consent to exclude the following
information:    

 

-      Names of AFP members, other than the Senior Executive; and

-      Direct telephone numbers, middle names of AFP members, signatures
and mobile telephone numbers of AFP members.

 

Disclosure of your identity

 

The AFP may be required to consult with third parties in accordance with
sections 26A, 27 and 27A of the Act. Please advise us if you consent to
the AFP identifying you as the FOI applicant for the purposes of the
consultation.  If we do not receive your consent, we will not disclose
your identity to third parties.

 

Information Publication Scheme

 

Please be advised that effective 1 May 2011 and in accordance with section
8(2) of the Act, an agency is required to publish information on the AFP
website following the notification of a decision in respect of a freedom
of information request.  Details of the decision will be published in a
Disclosure Log which can be found at
[1]https://www.afp.gov.au/about-us/informat....

 

The requirement to publish information released under FOI reinforces the
objectives of the FOI Act to promote a pro-disclosure culture across
government, and to increase recognition that information held by
government is a national resource.  Exceptions to the requirement to
publish information would apply to personal information and information
concerning the business affairs of a person if it was considered
‘unreasonable’ to do so. 

 

If however, after noting the above, you wish to raise any concerns about
the publication of information concerning your request prior to the
notification of a decision, please advise the AFP in writing before 18
December 2020.

 

 

Yours sincerely

 

 

 

ISABEL (AFP24268)
PARALEGAL
CHIEF LEGAL COUNSEL

[2]www.afp.gov.au
[3]Australian Federal Police

 

 

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References

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2. http://www.afp.gov.au/
3. http://www.afp.gov.au/

Dear Isabel,

Thank you for acknowledging my request.

I consent to the AFP excluding the following:
- Names of AFP members, other than the Senior Executive; and
- Direct telephone numbers, middle names of AFP members, signatures and mobile telephone numbers of AFP members.

I do not consent to my identity being disclosed to third parties.

Yours sincerely,

Steve McKenzie
Journalists for Freedom

FOI, Australian Federal Police

2 Attachments

OFFICIAL

Dear McKenzie

 

Please see attached correspondence in this matter.

 

 

Kind regards

 

NATALIE WOODBERRY
A/g SENIOR LAWYER / TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
[1]www.afp.gov.au
[2]Australian Federal Police

 

 

 

 

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Dear Natalie,

Re your letter and expressed intention to refuse.

Subject to the FOI Act, every person has a legally enforceable right to obtain access to government documents, the functions and powers given by the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly. You do not appear to be acting in the spirit of the legislation.

Considering that Commissioner Kershaw himself stated that "what I've said is if we're going to be FOIed or taken to the Supreme Court or wherever it is, and we're going to hand over the material anyway, why don't we just do it without all those processes having to be taken. So we're going to give that a go." It will be embarrassing when I write direct to him and his media advisor pointing out how obstructionist the AFP is being, despite what the Commissioner himself has stated, with regards to the Australian people's right to know.

For clarity,
1. I am requesting the AFP provide documents, relating to Mr David McBride's initial complaint to the AFP in 2014, in which he blew the whistle on the ADF. The documents I am requesting are copies of any letters and minutes, briefing documents, case management system notes, copies of notes made in police diaries or notebooks, emails.

I can't imagine there would be too many instances of Mr McBride trying to make a war crime report in 2014 so as to amount to thousands of documents and 39 days of searching?

2. I am requesting the AFP provide documents relating to the decisions arrived at by the AFP to prosecute Mr Dan Oakes, and then not to. The documents I am requesting are letters and minutes, briefing documents, emails, electronic messaging (SMS/WhatsApp etc), and copies of notes made in police diaries or notebooks.

Whilst it would be likely the full investigation would amount to thousands of documents, I highly doubt that there are thousands of documents around the decision whether to charge or not, and you are just trying to dodge the request and breach my right to know. To be clear, I am not requesting the brief of evidence or criminal investigation documentation, I am requesting administrative decision-making documents. Again, it would be a highly dubious claim, bordering on ridiculous, that it would take 39 days to search for and process this request.

Due to the AFP's time wasting tactics, I do not agree to a time extension.

Yours sincerely,

Steve McKenzie
Journalists for Freedom

FOI, Australian Federal Police

1 Attachment

OFFICIAL

Dear Mr McKenzie

 

Thank you for your email of 11 December 2020.

 

As set out in our letter of 9 December 2020, the purpose of our
correspondence is to provide you with an opportunity to consult with the
AFP to attempt to remove the practical refusal reason. An extension of
time was not being sought, rather you were being provided with a period of
time to undertake such a consultation with the AFP (as set out in the FOI
Act).

 

Based on your correspondence of 11 December 2020, we now understand that
you are seeking:

 

1)                  “documents, relating to Mr David McBride's initial
complaint to the AFP in 2014, in which he blew the whistle on the ADF...”
. The AFP understands that you seek documents relating to the complaint
only and not any subsequent investigative documents.

2)                  ‘documents relating to the decisions arrived at by the
AFP to prosecute Mr Dan Oakes, and then not to. The documents I am
requesting are letters and minutes, briefing documents, emails, electronic
messaging (SMS/WhatsApp etc), and copies of notes made in police diaries
or notebooks’. The AFP understands that you seek only documents regarding
such a decision.

 

If we have understood the scope of your request correctly, the AFP will be
able to proceed with processing your request. Grateful if you could please
confirm as soon as possible.

 

 

Kind regards

 

NATALIE WOODBERRY
A/g SENIOR LAWYER / TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
[1]www.afp.gov.au
[2]Australian Federal Police

 

 

 

 

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Dear Natalie,

Thank you for you email on 17 December 2020.

I can confirm that you seem to understand my request, however to be certain, I clarify by advising -

1. I am requesting the AFP provide documents, relating to Mr David McBride's initial complaint to the AFP in 2014, in which he blew the whistle on the ADF. The documents I am requesting are copies of any letters and minutes, briefing documents, case management system notes, copies of notes made in police diaries or notebooks, emails.

You understanding of this part of the request appears flawed when you advise that I "seek documents relating to the complaint only and not any subsequent investigative documents." This incorrect and this request may include investigative documents if they exist. I think the Australian people have a right to know whether Mr McBride's inital complaint was acted upon, and if not, why not.

2. I am requesting the AFP provide documents relating to the decisions arrived at by the AFP to prosecute Mr Dan Oakes, and then not to. The documents I am requesting are letters and minutes, briefing documents, emails, electronic messaging (SMS/WhatsApp etc), and copies of notes made in police diaries or notebooks.

You are correct for this part of the request, in that I am only seeking documents related to the AFP's decisions to, and than not to prosecute Mr Oakes. This would include documents relating to the descision making.

I look forward to receiving the FOI documents as requested.

Yours sincerely,

Steve McKenzie
Journalists for Freedom

FOI, Australian Federal Police

1 Attachment

OFFICIAL

Dear Mr McKenzie

 

Thank you for clarifying the scope of your request.

 

The AFP will continue to review your request and consider if we are able
to proceed with processing the request. Should we have any further queries
we will contact you.

 

Please be advised that as your requests relates to a third party (that is
someone other than yourself), if the AFP proceeds with processing your
request we will be required to undertake third party consultations before
making a decision on the release of those documents. 

               

Sub-section 15(6) of the Act provides for an extension of 30 days to the
statutory 30 day time limit for processing requests.  The time limit for
processing your request and notification of a decision will now expire on
26 January 2021.

 

If you have any queries, please do not hesitate to contact me.

 

 

Kind regards

 

NATALIE WOODBERRY
A/g SENIOR LAWYER / TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
[1]www.afp.gov.au
[2]Australian Federal Police

 

 

 

 

 

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FOI, Australian Federal Police

1 Attachment

OFFICIAL

Dear Mr McKenzie

 

Further to my below email, I confirm that the AFP will progress with
undertaking third party consultations.

 

As noted in my below email a decision will be due to you by 26 January
2021.

 

Kind regards

 

NATALIE WOODBERRY
A/g SENIOR LAWYER / TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
[1]www.afp.gov.au
[2]Australian Federal Police

 

 

 

From: Woodberry, Natalie On Behalf Of FOI
Sent: Friday, 18 December 2020 5:50 PM
To: 'Steve McKenzie' <[FOI #6907 email]>; FOI
<[email address]>
Subject: RE: FREEDOM OF INFORMATION REQUEST - 2021/308 - Section 24AB(2)
Notice [SEC=OFFICIAL]

 

OFFICIAL

Dear Mr McKenzie

 

Thank you for clarifying the scope of your request.

 

The AFP will continue to review your request and consider if we are able
to proceed with processing the request. Should we have any further queries
we will contact you.

 

Please be advised that as your requests relates to a third party (that is
someone other than yourself), if the AFP proceeds with processing your
request we will be required to undertake third party consultations before
making a decision on the release of those documents. 

               

Sub-section 15(6) of the Act provides for an extension of 30 days to the
statutory 30 day time limit for processing requests.  The time limit for
processing your request and notification of a decision will now expire on
26 January 2021.

 

If you have any queries, please do not hesitate to contact me.

 

 

Kind regards

 

NATALIE WOODBERRY
A/g SENIOR LAWYER / TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
[3]www.afp.gov.au
[4]Australian Federal Police

 

 

 

 

 

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Dear Natalie

As per your email of 23 December 2020, the AFP were required to provide me with a decision by 26 January 2021.

The time limit for processing my request has expired. It is now been over a week past that date and the AFP has still not provided that decision or the requested material as required by law.

Unless there is a legal impediment, please provide the requested material.

Yours sincerely,

Steve McKenzie
Journalists for Freedom

FOI, Australian Federal Police

OFFICIAL
Dear Mr McKenzie

Natalie is currently out of the office and I have been assigned this matter.

By way of update, a decision is expected to be notified to you by 16 February 2021.

We acknowledge that the request is overdue, however we are currently completing our clearance steps and are endeavouring to finalise the matter as a priority.

We apologise for the delay and any inconvenience this has caused.

regards

JACQUELINE ELLERY
PRINCIPAL FOI OFFICER/TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL
AUSTRALIAN FEDERAL POLICE
www.afp.gov.au

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Ellery, Jacqueline, Australian Federal Police

4 Attachments

UNOFFICIAL

 

Dear Mr McKenzie

 

Please find attached a decision in relation to your FOI request.

 

Regards,

 

JACQUELINE (AFP12306)
PRINCIPAL FOI OFFICER/TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL

[1]www.afp.gov.au
[2]Australian Federal Police

 

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References

Visible links
1. http://www.afp.gov.au/
2. http://www.afp.gov.au/