Internal Corrospondence related to the use of s15(2)(b) of the FOI Act

Ben Fairless made this Freedom of Information request to Department of Immigration and Border Protection

The request was successful.

From: Ben Fairless

Delivered

Dear Department of Immigration and Border Protection,

Under the FOI Act, I request a copy of all emails, policies,
procedures or other documents created by the Department which
relate to the Department's use of s15(2)(b) of the FOI Act.

Furthermore I request a copy of all emails, policies, procedures or
other documents created by the Department which relate to the
Department's handling of complaints that come from the RightToKnow
website (http://www.righttoknow.org.au/)

I specifically exclude decision letters issued by the department
which would otherwise fall under the scope of this request.

I also request that the costs of processing the above application
be waived on public interest grounds. The Department's handling of
FOI requests is important to ensure its accountability to the
Australian public and these documents (if any) will assist the
public in forming an opinion on the way in which

Before you ask, I take this opportunity to confirm that this email
address is a valid email address for the purposes of s15(2)(b) of
the FOI Act.

Yours faithfully,

Ben Fairless

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From: Ben Fairless

Delivered

Dear Department of Immigration and Border Protection,

I refer to my FOI request made on the 28th of February. Details of my FOI request can be found on the Right to Know Website - https://www.righttoknow.org.au/request/5...

I recognise that my request was missing some information due to a formatting error, and could have been worded better. I seek to revise my request as follows:

Under the FOI Act, I request a copy of all emails, policies, procedures or other documents created by the Department which relate to the Department's use of s15(2)(b) of the FOI Act.

Further, I request a copy of all emails, policies, procedures or other documents created by the Department which relate to the Department's handling of FOI requests that come from the RightToKnow website (http://www.righttoknow.org.au/)

I specifically exclude decision letters issued by the department which would otherwise fall under the scope of this request.

I also request that the costs of processing the above application be waived on public interest grounds. The objectives of the FOI Act are to “promote Australia's representative democracy by contributing towards... increasing public participation in Government processes, with a view to promoting better-informed decision-making [and] increasing scrutiny, discussion, comment and review of the Government's activities”. By using s15(2)(b) of the FOI Act to deter people from making FOI requests, there are concerns regarding the Department’s willingness to uphold both the spirit and the letter of the FOI Act.

I also take this opportunity to confirm that this email address is a valid email address for the purposes of s15(2)(b) of the FOI Act.

Yours faithfully,

Ben Fairless

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From: Ben Fairless

Delivered

Dear Department of Immigration and Border Protection,

I refer to my FOI request sent to you from this email address with the subject containing "Internal Corrospondence related to the use of s15(2)(b) of the FOI Act."

I have just noticed that both your Inbox Manager Janelle Raineri and I have been quoting the wrong section of the Act. I request that you amend my new FOI request to REMOVE references to s15(2)(b) and INCLUDE references to s15(2)(c).

The only reason I mentioned s15(2)(b) is because that was the reason you asked me to clarify my email address (see https://www.righttoknow.org.au/request/d....

If it helps, you can see all messages related to each FOI request at Right to Know. This request is available on the internet at https://www.righttoknow.org.au/request/i...

Yours faithfully,

Ben Fairless

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From: FOI

UNCLASSIFIED

Our references: FA 14/03/00162; ADF2014/7598

 

Dear Ben Fairless

 

Thank you for providing further clarification surrounding your recent FOI
request.  In particular the correct part of the FOI Act being section
15(2)(c), I regret this was an administrative error on my part.

 

I would like to further clarify the extent of your request in relation to
the type of ‘emails’ it is you intend to seek access to.  I note you have
excluded ‘decision letters’ from the scope of your request and I would
like to ensure I have understood your meaning of this accurately.  I seek
your clarification on the types of documents you are excluding from the
scope of your request: 

·         is it your intention to capture email correspondence to FOI
clients about the requirements of section 15(2); or

·         do you only seeking inter-departmental emails that would discuss
the policy/use of section 15(2) of the FOI Act. 

 

Please consider my email and provide a response to further clarify the
types of documents sought as part of your request by close of business
Tuesday 11 March 2014.

 

Your Sincerely

Janelle

__________________________________

Janelle Raineri

FOI Inbox Manager

FOI & Privacy Policy Section
Department of Immigration and Border Protection

Email: [1][DIBP request email]

 

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From: Ben Fairless

Delivered

Dear Janelle,

I refer to your email today regarding my FOI request (FA14/03/00162; ADF2014/7598). A copy of my request and all correspondence can be found at
https://www.righttoknow.org.au/request/547

Please revise the below paragraph:
"I specifically exclude decision letters issued by the department which would otherwise fall under the scope of this request."

To:
"I wish to exclude clarification requests that were sent from the Department to FOI clients referencing s.15(2)(c).

I do not exclude communication with FOI clients where, for example, there is discussion around the use of s.15(2)(c) or where a FOI client has made a complaint to the Department on the use of s.15(2)(c)."

I trust that limits the scope sufficiently for you.

Regards,

Ben Fairless

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From: FOI

UNCLASSIFIED

Our references: FA 14/03/00162; ADF2014/7598

 

Dear Ben Fairless

 

Thank you for your email.  I have updated the scope of your request as per
your email below.

 

Yours Sincerely

Janelle

 

__________________________________

Janelle Raineri

FOI Inbox Manager

FOI & Privacy Policy Section
Department of Immigration and Border Protection

Email: [1][DIBP request email]

 

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From: FOI


Attachment Ben Fairless FA 14 03 00162 Acknowledgement of FOI Request.pdf
177K Download View as HTML


UNCLASSIFIED

Our references: FA 14/03/00162; ADF2014/7598

 

Dear Ben,

 

Please find attached the acknowledgement of receipt for your recent FOI
Request. 

 

Yours sincerely,

 

Isheeka Goswami
Privacy Administrative Officer

FOI and Privacy Policy
Department of Immigration and Border Protection
Telephone: (02) 6198 7525
Email: [1][email address]

 

UNCLASSIFIED

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From: FOI

UNCLASSIFIED

Our references: FA 14/03/00162;  ADF2014/7598

 

Dear Mr Fairless,

 

Re: Your Freedom of Information request

 

I am writing to inform you that I have been appointed as the authorised
decision maker for your FOI request, seeking access to:

 

“I request a copy of all emails, policies, procedures or other documents
created by the Department which relate to the Department's use of
s15(2)(c) of the FOI Act.

 

Furthermore I request a copy of all emails, policies, procedures or other
documents created by the Department which relate to the Department's
handling of complaints that come from the RightToKnow website
(<http://www.righttoknow.org.au/>)

 

I wish to exclude clarification requests that were sent from the
Department to FOI clients referencing s.15(2)(c).

 

I do not exclude communication with FOI clients where, for example, there
is discussion around the use of s.15(2)(c) or where a FOI client has made
a complaint to the Department on the use of s.15(2)(c).”

 

As part of the department’s FOI service standard, I will update you every
14 days regarding the progress of your request, however please do not
hesitate to contact me if you have any questions or wish to discuss the
request in the interim.

 

Regards

 

_____________________________________

Shannon Bevan
FOI Officer

FOI & Privacy Policy Section

Ministerial, Executive and External Accountability Branch (MEEAB)
Department of Immigration and Border Protection

( (02) 6264 4667

8 [1][DIBP request email] 

 

UNCLASSIFIED

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From: Shannon BEVAN

UNCLASSIFIED

Our references: FA 14/03/00162; ADF2014/7598

 

Dear Mr Fairless,

 

I am writing regarding your FOI Request FA 14/03/00162. I note that I have
received some documents that are within the scope of your request.

 

I am almost ready to finalise my decision and I was wondering if you would
be happy to remove the following details from the scope:

 

-          applicant’s names;

-          email addresses; and

-          telephone numbers.

 

Could you please provide me with a response by COB Thursday 27 March 2014.

 

Kind Regards

 

Shannon

 

_____________________________________

Shannon Bevan
FOI Officer

FOI & Privacy Policy Section

Ministerial, Executive and External Accountability Branch (MEEAB)
Department of Immigration and Border Protection

( (02) 6264 4667

8 [1][DIBP request email] 

 

UNCLASSIFIED

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From: Ben Fairless

Delivered

Dear Shannon,

I refer to your email dated 26 March 2014.

I am happy to exclude email addresses and telephone numbers from my request.

I am also happy to exclude names of members of the public.

I do not wish to exclude names of current or former employees or contractors of the Department.

Yours sincerely,

Ben Fairless

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From: FOI

UNCLASSIFIED

Our references: FA 14/03/00162; ADF2014/7598

Dear Mr Fairless,

Thank you for your response.

Kind Regards

Shannon

_____________________________________
Shannon Bevan
FOI Officer
FOI & Privacy Policy Section
Ministerial, Executive and External Accountability Branch (MEEAB) Department of Immigration and Border Protection
(02) 6264 4667
[email address]

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From: FOI


Attachment Fairless FA 14 03 00162 Decision Letter.pdf
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Attachment Fairless FA 14 03 00162 Decision Record Schedule of Documents.pdf
259K Download View as HTML

Attachment Correspondence regarding FOI request FA 13 08 00254.pdf
77K Download View as HTML

Attachment Correspondence regarding FOI request FA 13 08 00260.pdf
106K Download View as HTML

Attachment Correspondence regarding FOI request FA 14 02 01093.pdf
130K Download View as HTML


UNCLASSIFIED

Our references: FA 14/03/00162; ADF2014/7598

 

Dear Mr Fairless,

 

I refer to your FOI request received on 28 February 2014, seeking access
to the following:

 

I request a copy of all emails, policies, procedures or other documents
created by the Department which relate to the Department's use of
s15(2)(c) of the FOI Act.

 

Furthermore I request a copy of all emails, policies, procedures or other
documents created by the Department which relate to the Department's
handling of complaints that come from the RightToKnow website
(<http://www.righttoknow.org.au/>)

 

I wish to exclude clarification requests that were sent from the
Department to FOI clients referencing s.15(2)(c).

 

I do not exclude communication with FOI clients where, for example, there
is discussion around the use of s.15(2)(c) or where a FOI client has made
a complaint to the Department on the use of s.15(2)(c).

 

I have made a final decision on this request.

 

Please see attached my signed Decision Letter, Decision Record, and
Schedule of Documents and documents released under the FOI Act.

 

This request has now been closed.

 

Regards

 

 

_____________________________________

Shannon Bevan
FOI Officer

FOI & Privacy Policy Section

Ministerial, Executive and External Accountability Branch (MEEAB)
Department of Immigration and Border Protection

( (02) 6264 4667

8 [1][DIBP request email] 

 

UNCLASSIFIED

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Henare Degan left an annotation ()

Amazing. Unless they're deliberately not writing things down to avoid the FOI Act I find it very hard to believe there's been no internal discussions about their approach to s15(2)(c).

I'd request an internal review.

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From: Ben Fairless

Delivered

Dear Department of Immigration and Border Protection,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of Immigration and Border Protection's handling of my FOI request 'Internal Corrospondence related to the use of s15(2)(c) of the FOI Act'.

The review is requested for the following reasons:

s15(2)(c) has been used in such away that it could reasonably considered "standard practice" for requests from Right to Know. It would therefore be unreasonable to assume that no internal discussion or dialogue has taken place.

A reasonable person would therefore assume that some dialogue has taken place to form this position. This could include, but is not limited to, verbal meetings where minutes of the meeting were kept (as an example)?

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/i...

Yours faithfully,

Ben Fairless

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From: FOI

UNCLASSIFIED

Our references: FA 14/03/00162-R1; ADF2014/7598

 

Mr Ben Fairless

 

Via email: [1][FOI #547 email]

 

 

Good evening Mr Fairless

 

This email is to confirm that the Department of Immigration and Border
Protection (the Department) received your request for internal review
submitted under s.54 of the Freedom of Information Act 1982 (the Act) in
relation to its decision on 28 March 2014, regarding FA 14/03/00162. The
Department received your request the same day of the decision. 

 

As the Act provides the Department with 30 days to process an internal
reviews, under the Act the Department is required to provide you with a
decision by close of business Sunday 27 April 2014. However, as this is a
non-working day, s.36(2) of the Acts Interpretation Act 1901 allows the
Department to provide the decision to you on the next working day, which
is Monday 28 April 2014.

 

Please note that this internal review request has been allocated to me for
decision. I will write to you shortly to set out the grounds of your
review request as I understand them.

 

Yours sincerely

 

Angela O’Neil

Authorised decision maker

FOI and Privacy Policy Section

Ministerial, Executive and External Accountability Branch

Department of Immigration and Border Protection

 

Email: [2][DIBP request email]

 

 

UNCLASSIFIED

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1. mailto:[FOI #547 email]
2. mailto:[DIBP request email]

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From: FOI

UNCLASSIFIED
 
Our references: FA 14/03/00162-R1; ADF2014/7598
 
Mr Ben Fairless
 
By email: [1][FOI #547 email]
 
 
Re: Your request for internal review of a decision under the Freedom of
Information Act 1982
 
I am writing to advise you that I have been appointed as the authorised
decision maker on your request for internal review of the decision
notified to you on Friday 28 March 2014 (FA 14/03/00162), by Ms Shannon
Bevan. 
 
Ms Bevan’s decision was in response to your request under s.15 of the
Freedom of Information Act 1982 (the Act) for:
 
‘I request a copy of all emails, policies, procedures or other documents
created by the Department which relate to the Department's use of
s15(2)(c) of the FOI Act.
 
Furthermore I request a copy of all emails, policies, procedures or other
documents created by the Department which relate to the Department's
handling of complaints that come from the RightToKnow website
(<[2]http://www.righttoknow.org.au/>)
 
I wish to exclude clarification requests that were sent from the
Department to FOI clients referencing s.15(2)(c). I do not exclude
communication with FOI clients where, for example, there is discussion
around the use of s.15(2)(c) or where a FOI client has made a complaint to
the Department on the use of s.15(2)(c).’
 
Ms Bevan released in full all the documents identified as falling within
the scope of your request, deleting information under s.22(1)(a)(ii) of
the Act.
 
I will now consider the elements of your request for internal review.
 
Terms of your review request
 
You advised the Department:
 
‘I am writing to request an internal review of Department of Immigration
and Border Protection's handling of my FOI request 'Internal
Corrospondence related to the use of s15(2)(c) of the FOI Act'.
 
The review is requested for the following reasons:
 
s15(2)(c) has been used in such away that it could reasonably considered
"standard practice" for requests from Right to Know. It would therefore be
unreasonable to assume that no internal discussion or dialogue has taken
place. A reasonable person would therefore assume that some dialogue has
taken place to form this position. This could include, but is not limited
to, verbal meetings where minutes of the meeting were kept (as an
example)?’
 
I note that Ms Bevan released the documents to you with only the
irrelevant material deleted. Under the Act, this is considered to be
‘release in full’.
 
Therefore, I have interpreted your request for internal review to be that
the decision maker:
 

 1. did not interpret the scope correctly; and/or
 1. failed to identify and locate all the documents within scope of the
request.

 
I will now consider your internal review request against the validity
elements in the Act.
 
Validity elements for an internal review request
 
For an internal review request to be valid, it must be a request to review
an ‘access refusal’ decision or an ‘access grant’ decision. Section 53A of
the Act defines ‘access refusal decision’ to include at s.53A(b):
 
A decision giving access to a document but not giving in accordance with
the request, access to all the documents to which the request relates.
 
This element of an ‘access refusal decision’ applies to decisions where
the applicant is challenging the way that the agency interpreted the scope
and/or where an applicant believes that the agency failed to identify all
documents in scope of the request. Therefore, Ms Bevan’s decision meets
the definition of ‘access refusal’ decisions in s.53A of the Act. Further,
s.54 of the FOI Act provides that an applicant may apply to the agency for
internal review of an access refusal decision providing the decision was
not made by the ‘principal officer of the agency’ (ie the Secretary of the
Department).
 
The decision was made by an authorised decision maker, Ms Bevan, and was
notified to you on Friday 28 March 2014. Finally, internal review requests
must be in writing and submitted within 30 days of being notified of the
original decision (s.54AB(1) of the FOI Act).
 
You submitted your request for internal review to the Department the same
day, Friday 28 March 2014, which was within the 30 days as required.
 
Therefore, I am satisfied that your request meets the validity
requirements for seeking internal review of the access refusal decision.
 
Things to note about the internal review
 
Section 54C(3) of the FOI Act provides that I must make a ‘fresh decision’
on the original request rather than conducting a review of the merits of
the original decision.
 
The Act requires that I must make the internal review decision within 30
days of the date that the agency received the request (Friday 28 March
2014). Therefore, under the Act, I must make the decision by Sunday 27
April 2014. However, as this is non-working day, s.36(2) of the Acts
Interpretation Act 1901 (Cth) provides that the Department may provide its
decision on the next working day, which is Monday 28 April 2014.  
 
Please feel free to contact me in the interim if you have any further
questions about the process.
 
Yours sincerely
 
Angela O’Neil
Authorised decision maker
FOI and Privacy Policy Section
Ministerial, Executive and External Accountability Branch
Department of Immigration and Border Protection
 
Email: [DIBP request email]
UNCLASSIFIED
 
 

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From: FOI


Attachment Decision internal review FA 14 03 00162 R1.pdf
498K Download View as HTML

Attachment Attachment D docs FA 14 03 00162 R1.pdf
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UNCLASSIFIED

Our references: FA 14/03/00162-R1; ADF2014/7598

 

Mr Ben Fairless

 

By email: [1][FOI #547 email]

 

 

Dear Mr Fairless

 

I refer to your request for internal review of the decision by Ms Marianne
Nolte-Crimp (re FA 14/103/00162), notified to you on 28 March 2014. The
Department received your request for internal review on that same day and
it was allocated to me for decision on Thursday 3 April 2014.

 

The due date under the Freedom of Information Act 1982 (the Act) of Sunday
27 April 2014. However, as the due date under the Act falls on a
non-working day, s.36(2) of the Acts Interpretation Act 1901, allows the
Department to provide you with a decision on the next working day, which
is Monday 28 April 2014.

 

This email is to advise you that I have made a final decision on this
request. You will find attached a covering letter, my signed Decision
Record, the Schedule of Documents and the relevant documents in Attachment
D.

 

This internal review request has now been closed.

 

Yours sincerely

 

Angela O'Neil
Assistant Director

FOI and Privacy Policy Section

Ministerial, Executive and External Accountability Branch
Department of Immigration and Border Protection

Telephone: 02 6264 1382
Email: [2][DIBP request email]

 

UNCLASSIFIED

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Things to do with this request

Anyone:
Department of Immigration and Border Protection only: