Dear Minister for Immigration and Border Protection,
I am seeking access under the FOI Act to any and all documents in the nature of policies, procedures or directions to staff within the Ministerial Office, the department, its staff and/or contractors, or documents amending or modifying the effect of the same, relating to making comment to the media, or issuing statements or releases to the media, which cover comments etc about unlawful boat arrivals or asylum seekers and which came into effect after 1 September 2013.
I am seeking a waiver of associated access charges on the basis that publication of these documents would be in the public interest. Disclosure of these documents would increase scrutiny, discussion, comment and review of the Government's activities, an object of the FOI Act (s 3(2)(b)). In particular these documents would permit a greater and more informed discussion of the way in which the Government promotes scrutiny, discussion, comment and review of its activities.
I am happy to be contacted for more information by reply email.
Our reference: FA 13/10/00050; ADF2013/31940
To Mr Michael Cordover
Via email: [FOI #414 email]
Dear Mr Cordover
Thank you for your request submitted to the Department on Saturday 21
September 2013 at 11.32 am, under the Freedom of Information Act 1982 (the
I am seeking access under the FOI Act to any and all documents in the
nature of policies, procedures or directions to staff within the
Ministerial Office, the department, its staff and/or contractors, or
documents amending or modifying the effect of the same, relating to making
comment to the media, or issuing statements or releases to the media,
which cover comments etc about unlawful boat arrivals or asylum seekers
and which came into effect after 1 September 2013.
This email is to acknowledge the receipt of your request and to advise you
that the request has not been accepted as valid under the Act. I will set
out the reasons below. Before doing so, I will outline the requirements
for a valid FOI request.
In doing so, I hope to assist you to resubmit your request as one that the
agency can accept as valid.
Requirements for a valid request
Section 15 of the Act provides that a person who wishes to obtain access
to a document of an agency may request access to that document. To be
valid, the request be in writing, state that the request is an application
under the Act and give details of how notices under the Act may be sent to
the applicant (ss.15(2)(a), (c) and (d) of the Act). Finally, the request
must ‘provide such information concerning the documents as is reasonably
necessary to enable a responsible officer of the agency, or the Minister,
to identify it’ (s.15(2)(b)). This provision allows an agency to balance
the resources it will need to use to identify and locate documents against
an applicant’s right to request access to the documents.
Application of s.15(2)(b) to your request
I am satisfied that your request does not meet the requirement in
s.15(2)(b) in that it does not provide information which will enable a
responsible officer to identify the documents you are seeking, without it
being a substantial and unreasonable diversion of the Commonwealth’s
resources to do so.
I note that the scope is expressed very broadly. For example, the phrase
‘any and all documents’ includes all emails, email chains, drafts,
different versions of drafts and duplicates/copies of the documents that
might fall in scope. I note also that the term ‘in the nature of policies,
procedures or directions…’ is so vague that it would not be possible to
identify the type of document you are seeking. These documents would range
from emails to departmental policies through to media releases.
In addition, the phrase ‘modifying the effect of the same’ has no meaning
in the context of departmental documents as amendments to policies will be
amendments to the documents, not amendments to the ‘effect of’ the
documents. Further, the phrase ‘relating to making comments to the media
or issuing statements or releases to the media’ would require the
Department to search an unreasonable number of routine administrative
communications to identify and locate potentially relevant documents. This
is despite the scope being limited to documents that came into ‘effect’
from 1 September 2013.
I note the request is limited to the topics of ‘unlawful boat arrivals or
asylum seekers’. However, the term ‘asylum seeker’ applies to any person
who has claimed protection under the Refugee Convention. As a result, the
scope of the request is broader than merely documents regarding media
statements about applicants under the Refugee Convention who have
attempted to travel to Australia by boat.
Finally, your scope includes all documents held or created by ‘staff
within the Ministerial Office, the department, its staff and/or
contractors’ that relate to the topic of the request. As the Department
has a range of contracts in place that might be relevant to ‘unlawful boat
arrivals and asylum seekers’, your current scope would require the
Department to ask each potentially relevant contractor to search its
records to determine whether it held any relevant documents. It would
assist your request if you were to identify which contractors’ documents
you wish to access. In addition, the Department would not hold any
documents relating to staff ‘policies, procedures or directions’ in the
I am satisfied that your request does not meet the requirements in
s.15(2)(b) of the Act and so is invalid. In the event that it were valid,
I am satisfied that it would be a substantial and unreasonable diversion
of the Department’s resources to try to identify documents that may fall
within the current scope of your request. As a result, I have closed this
You remain welcome to resubmit your request, taking into account the
advice I have set out above.
Manager FOI Help Desk
Department of Immigration and Border Protection
Email: [email address]