Religious make up of Boat People
Dear Minister for Immigration and Citizenship,
Would you please provide me with statistics on what proportion each religious group makes up of the 50,000+ illegal boat people arriving in Australian waters since the Rudd government dismantled our border protection proviso's?
Yours faithfully,
Bruce Coulter
UNCLASSIFIED
Our references: FA 13/08/01153 ; ADF2013/27815
Good afternoon
I refer to your request for access to information, received on 27 August
2013, for:
“statistics on what proportion each religious group makes up of the
50,000+ illegal boat people arriving in Australian waters since the Rudd
government dismantled our border protection proviso's?”
This email is to advise that the Department has registered your request
but closed it as invalid under the Freedom of Information Act 1982 (the
Act). This is because your request is for 'information' and not for a
document in the Department's possession at the time of your request. I
will outline more fully the reasons for this below.
Access to Documents
The right to request documents under the Act is outlined in the Guidelines
published by the Office of the Australian Information Commissioner (OAIC):
Section 11(1) of the Act gives every person a legally enforceable right to
obtain access to a document of an agency or an official document of a
minister, unless the document is exempt. [para 2.1]
The right of access enshrined in the FOI Act applies to ‘documents’. This
term is defined in s 4(1) to include maps, photographs, and any article
from which sounds, images or writing are capable of being reproduced (for
example, emails). There is no general obligation on agencies to reduce
information to written documentary form in order to facilitate an FOI
request, except in relation to information that is stored on a computer
tape or disk (s 17). [para 1.26]
The right of access is to existing documents, rather than to information.
The FOI Act does not require an agency or minister to create a new
document in response to a request for access, except in limited
circumstances where the applicant seeks access in a different format (see
Part 8 of these Guidelines) or where the information is stored in an
agency computer system rather than in discrete form.
The right of access applies to documents that exist at the time the FOI
request was made. [para 3.8]
Therefore, any general request for 'information' or 'data' that does not
already exist on Departmental documents will be an invalid request.
The full Guidelines can be accessed on the OAIC's website at:
[1]http://www.oaic.gov.au/freedom-of-inform...
Further advice
You may not be aware, but the Department publishes a range of statistical
information on its website at:
[2]http://www.immi.gov.au/media/publication... . The information you are
seeking may be available in one of these publications.
Yours sincerely
Angela O'Neil
Assistant Director
FOI & Privacy Policy
Department of Immigration and Citizenship
Telephone: (02) 6264 1382
Email: [3][email address]
Dear FOI,
Would you please provide me with some information concerning the religious makeup (Muslim, Hindu, Christian etc) of all the boat people arriving as asylum seekers during the Rudd/Gillard/Rudd government.
Yours sincerely,
Bruce Coulter
UNCLASSIFIED
Our references: FA 13/08/01153 ; ADF2013/27815
Dear Mr Coulter
Thank you for your email.
The Department of Immigration and Border Protection was unable to register
this as it is unclear whether this is a new FOI request or a request for
internal review of your earlier request.
Could you please confirm whether you are seeking an internal review of
your FOI request FA 13/08/01153 or whether you wish this to be treated as
a new request.
Yours sincerely
Angela O'Neil
Assistant Director
FOI and Privacy Policy Section
Department of Immigration and Border Protection
Email: [1][email address]
UNCLASSIFIED
Our references: FA 13/08/01153 ; ADF2013/27815
Dear Mr Coulter
I am writing to you further about your email of 7 January 2014. I have
reviewed your request on the Right to Know website and am satisfied that
you intended to seek an internal review,. You have asked the Department
to reconsider its view, advised to you on 28 August 2013, that your
request for information was not a valid request under the Act.
Operation of the Act
Part VI of the Freedom of Information Act 1982 (the Act) allows a person
to seek internal review of a range of specified decisions, including an
‘access refusal decision’ (s.54(2) of the Act). Section 53A contains the
definition of the term ‘access refusal decision’. Requests for internal
review must be submitted within 30 days of the date of the relevant
decision or such other time as the agency ‘allows’ (s.54B(1)(a) of the
Act).
Advice
The Department of Immigration and Border Protection cannot accept your
current request as a valid request for internal review. The reason is that
the advice provided to you on 28 August 2013 (that your request was not
valid) does not meet the definition of an ‘access refusal decision’ in
s.53A of the Act. Therefore, the decision is not amenable to internal
review.
Yours sincerely
Angela O'Neil
Assistant Director
FOI and Privacy Policy Section
Department of Immigration and Border Protection
Email: [email address]
UNCLASSIFIED
_____________________________________________
From: Angela O'NEIL On Behalf Of FOI
Sent: Tuesday, 7 January 2014 4:20 PM
To: Bruce Coulter
Cc: Rowan PATTERSON
Subject: TRIM: Internal review of Freedom of Information request -
Religious make up of Boat People [SEC=UNCLASSIFIED]
UNCLASSIFIED
Our references: FA 13/08/01153 ; ADF2013/27815
Dear Mr Coulter
Thank you for your email.
The Department of Immigration and Border Protection was unable to register
this as it is unclear whether this is a new FOI request or a request for
internal review of your earlier request.
Could you please confirm whether you are seeking an internal review of
your FOI request FA 13/08/01153 or whether you wish this to be treated as
a new request.
Yours sincerely
Angela O'Neil
Assistant Director
FOI and Privacy Policy Section
Department of Immigration and Border Protection
Email: [1][email address]
Locutus Sum left an annotation ()
This looks like a wrong, and silly, decision. It looks as if it should be obvious to the decision maker that it is a wrong decision. The decision maker says "Your original request was not valid under the Act. Because it was not valid, a request for internal review cannot be valid." I do not see anything in the Act to make that idea right. When a decision officer decides that an application is not valid, then Part III (access to documents) of the Act does not apply. But I think that does not mean that Part VI (internal review) does not apply.
There exist two prior cases that give an appearance to be relevant. With the case of Parnell and Minister for Infrastructure and Transport [2011] AICmr 3 (11 April 2011) (http://www.austlii.edu.au/cgi-bin/sinodi...) the Information Commissioner decided that he could review a decision when the decision was of the type "The FOI Act does not apply." It is worthwhile to look closely at paragraphs 7-9.
There is a another case with a similar idea. It is the case Luck and Department of Human Services [2010] AATA 6 (8 January 2010) (http://www.austlii.edu.au/cgi-bin/sinodi...) with paragraphs 67-76.
Also, the idea that the sentence "he reason is that
the advice provided to you on 28 August 2013 (that your request was not
valid) does not meet the definition of an ‘access refusal decision’ in
s.53A of the Act. " is true, is completely silly. A decision that does not give an applicant documents in accordance with their request is and "access refusal decision." The decision that a request does not meet the conditions of the Act is also a decision that does not give the applicant the document she wants. So, obviously it is an access refusal decision. If it were not true, then a depertment always could avoid a review and avoid the law just by saying "Your request is not valid."
It would be interesting to know if Mr Michael Cordover (https://www.righttoknow.org.au/search/co...) agrees. He has made interesting comments about my annotations in the past.
Ben Fairless left an annotation ()
Hi Bruce,
Unlike other Jurisdictions (such as the UK) the FOI laws in Australia only allow access to *documents*, not to information.
For example, "Provide me with a copy of any reports which show the religious make-up of Unauthorised Boat Arrivals" would be valid under FOI (if such a document was to exist and there wasn't a reason to refuse access) however "Tell me what the religious make-up of boat people is" is a question, and doesn't reference a document, ergo is invalid.
B.