Legal Advice re Australians killed in Yemen by US Drones

Culley Palmer made this Freedom of Information request to Australian Broadcasting Corporation

Response to this request is long overdue. By law, under all circumstances, Australian Broadcasting Corporation should have responded by now (details). You can complain by requesting an internal review.

From: Culley Palmer

Delivered

Dear Australian Broadcasting Corporation,

I hereby request under the Freedom of Information Act (1982);

Copies of all documents which contain legal advice received by the
Australian Broadcasting Corporation on the investigation and
publication of news reports related to the killing of any
Australian citizen by a US Unmanned Aerial Vehicle (Drone) in
Yemen.

This would include legal advice provided by Australian Government
Agencies or Departments, as well as private law firms, whether
solicited or unsolicited by the Australian Broadcasting
Corporation.

For reference, I have provided a link to an ABC 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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Locutus Sum left an annotation ()

Section 42(1) of the Commonwealth Freedom of information Act (http://www.austlii.edu.au/au/legis/cth/c... says, "A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege." There stands an exclusion from the claim of legal privilege if the material is "operational information" (http://www.austlii.edu.au/au/legis/cth/c... but the applicant has asked for copies of "legal advice" so the exemption will not matter.

Brief comment: The documents for which the applicant has requested access are legally privileged and are therefore absolutely exempt under the FOI Act. The Australian Broadcasting Corporation is not prohibited to publish documents with legal privilege but it would not be intelligent to do this.

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Culley Palmer left an annotation ()

Locotus Sum, thanks for the annotation. I wasn't aware of this.

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From: Judith Maude
Australian Broadcasting Corporation


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Dear Mr Palmer
 
I have received your request for access to documents under the Freedom of
Information Act (1982) (the FOI Act).
 
I note that you have requested access to “all documents which contain
legal advice received by the Australian Broadcasting Corporation on the
investigation and publication of news reports related to the killing of
any Australian citizen by a US Unmanned Aerial Vehicle (Drone) in Yemen”
 
Under the FOI Act, documents that are subject to legal professional
privilege are exempt from disclosure. Specifically, section 42 states:
s.42    Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it
would be privileged from production in legal proceedings on the ground of
legal professional privilege.
You have specifically requested documents which contain legal advice. By
their nature, those documents (if they exist) would be subject to legal
professional privilege and therefore are highly likely to be exempt from
disclosure under the FOI Act.
 
While I am happy to process your request as it is currently drafted, I
invite you to consider reframing your request. My contact details are
below if you would like to contact me to discuss the matter.
 
In the circumstances, I will wait until I hear from you before I commence
processing your request.
 
Regards
 

+------------------------------------------------------------------------+
| | | | Judith Maude |
| | | | Head Corporate Governance |
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| [1][IMG] |   |   |   |
| | | |-------------------------------------------------|
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| | | |-------------------------------------------------|
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| | | | +---------------+ | | |
| | | | | P | +61 2 | | | +--------------------------------+ |
| | | | | | 8333 5316 | | | |E |[2][email address] | |
| | | | |---+-----------| | | |---+----------------------------| |
|   |   |   | | M | +61 0412 | |   | |F |+61 2 8333 5305 | |
| | | | | | 898 657 | | | +--------------------------------+ |
| | | | +---------------+ | | |
| | | | | |   |
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| | | | [3][IMG] |
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From: Culley Palmer

Delivered

Dear Judith Maude,
Australian Broadcasting Corporation,

Thank you for email.

I appreciate your patience in this matter, as I was not aware of this exemption. Thank you for bringing it to my attention.

I have considered how to reframe the request, and at this point I think emails between the Attorney-General's Department and the Australian Broadcasting Corporation, on the subject of Australians killed in Yemen by drones, would be useful.

Would it be possible to change the scope to this?

The revised scope would be:

Emails between the Australian Broadcasting Corporation and the Attorney-General's Department which mention or discuss the killing of any Australian citizen by a US Unmanned Aerial Vehicle (Drone) in Yemen. Please exclude duplicates.

Regards,

Culley Palmer

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From: Culley Palmer

Delivered

Dear Judith Maude,

Would you please confirm receipt of my email dated 4th March 2015, and provide me with an update on the status of my request.

Regards,

Culley Palmer

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From: Judith Maude
Australian Broadcasting Corporation


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Dear Mr Palmer

 

Thank you for your email . I received your earlier message of 4 March, and
have been considering the matter.

 

I note that you have reframed your application to be a request for the
following documents:

 

“Emails between the Attorney-General's Department and the Australian
Broadcasting Corporation, on the subject of Australians killed in Yemen by
drones.”

 

While this addresses the potential obstacle relating to legal professional
privilege, there remains a couple of matters that I would like to discuss
with you. Specifically:

 

·         Your  request is not limited to emails to or from any particular
group of people or department within the ABC. This means that in order to
process the request as it is presently drafted, I would need to consult
with every ABC employee. This would clearly not be feasible, and it would
be useful to refine and narrow the request to enable me to conduct an
effective search for documents.

 

·         You should be aware that the ABC is specifically excluded from
the operation of the FOI Act in relation to its program material by virtue
of s7(2) and Part II, Schedule 2 of the FOI Act. ‘Program material’ for
the purposes of that Part has been interpreted to mean: “the program and
all versions of the whole or any part of the program, any transmission
broadcast or publication of the program, and includes a document of any
content or form embodied in the program and any document acquired or
created for the purpose of creating the program, whether or not
incorporated into the completed program.” If the documents you are
requesting relate to the ABC’s news and current affairs programming, it is
possible (depending on the nature of the documents) that they will be
outside the scope of the FOI Act. This certainly does not prevent you from
making a request; I raise it simply to assist in the making of the
request.

In order to progress your request, I suggest you contact me to discuss the
matter. My contact details are below.

 

Regards

 

 

[1]ABC Judith Maude
Head Corporate Governance
P +61 2 8333 5316 E [2][email address]
M +61 0412 898 657 F +61 2 8333 5305
[3]http://www.abc.net.au/corp/enter/img/bra...

 

 

 

 

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Things to do with this request

Anyone:
Australian Broadcasting Corporation only: