Schedule of Special Purpose Flights

alan cole made this Freedom of Information request to Department of Defence

The request was refused by Department of Defence.

From: alan cole

Delivered

Dear Department of Defence,
I would like to make the following FOI requests.

1. to ask as the schedules of special purpose flights are published twice yearly why there has been no publication of any 2016 flights ?

2.request the schedule and flight manifests including crews of all special purpose flights outside of Australia i.e international flights between January and july of 2017

Yours faithfully,

alan cole

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From: FOI
Department of Defence

UNCLASSIFIED

Good morning

Thank you for your email. Your email has been forwarded for consideration/action.

Kind regards

FOI Operations
[email address]
(02) 6266 2200
http://www.defence.gov.au/foi/

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Verity Pane left an annotation ()

Hi Alan,

Regarding your request for reasons as to why there has been no publication of special purpose flight information lately, it's worth remembering that the Freedom of Information Act 1982 (Cth) 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 answer questions put, in order to facilitate an FOI request, except in relation to information that the agency may not unreasonably be burdened in producing, in a discrete document (where no such discrete document may currently exist), using a computer or other resources available to the agency (s 17).

Although a request under the FOI Act must be for ‘documents’, rather than for ‘information’, a request may be phrased by reference to the information that documents contain [see Mills and Department of Immigration and Border Protection [2014] AICmr 54 at [15]–[16]]. An applicant is also not required to know exactly what documents exist and may describe a class of documents, for example: all documents relating to a particular person or subject matter; or all documents of a specified class that contain information of a particular kind; or all documents held in a particular place relating to a subject or person. A request can also be described quite broadly and must be read fairly by an agency or minister, being mindful not to take a narrow or pedantic approach to its construction.

Despite this, Defence may likely respond, refusing to deal with Part One of your request claiming that you have sought information, not a document. What they should however do, however, is interpret Part One of your FOI request as an administrative access request in the first instance (agencies are always entitled to answer questions put to them administratively) or failing that, as a request for documents relating to any direction given not to upload these Special Purpose Flight summary documents as per its usual practice (which is how it can be fairly interpreted). However agencies often tend to take a very narrow and unnecessarily pedantic approach to interpretation, so you may wish to revise Part One of your request with Defence, to avoid a generic response.

Part 2 of your FOI request is well defined as to the documents sought, but it is likely it may face some exemption challenges with respect to the manifests sought (and possibly to certain parts of schedule as well, depending on the particular nature of each individual flight). Defence may seek s 47F exemption, claiming personal information (but this would not necessarily be clear cut - depends on the specific factual circumstances).

If you have the time, do take a look at the FOI Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 https://www.oaic.gov.au/freedom-of-infor...

It is quite helpful when navigating the FOI system.

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From: Skorupa, Lucy MRS
Department of Defence

UNCLASSIFIED

Dear Mr Cole,
 
I refer to your FOI request dated 11 July 2017.
 
You requested information in relation to:

1. to ask as the schedules of special purpose flights are published
twice yearly why there has been no publication of any 2016 flights ?

2. request the schedule and flight manifests including crews of all
special purpose flights outside of Australia i.e international flights
between January and July of 2017.

Can you please confirm if you are requesting documents for item 1 of your
request regarding the schedules of special purpose flights for 2016?

Your prompt response would be appreciated.

Kind regards,

 
 

Lucy Skorupa

Case Manager

Freedom of Information

Information Management and Access

Governance & Reform Division

 

Department of Defence

CP1-6-A007

PO Box 7910 Canberra ACT 2610

P: (02) 6266 3664

 

IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.

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From: alan cole

Delivered

Dear Skorupa, Lucy MRS,
my question for the first question is not about requesting documents but why have they not been published ? The schedules for special purpose flights for 2016 should already be in the public domain as they are done every 6 months and it is now july 2017 and the last schedules published finished in December 2015.

Yours sincerely,

alan cole

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From: Skorupa, Lucy MRS
Department of Defence

UNCLASSIFIED

Good morning Mr Cole,

Unfortunately under the FOI Act I cannot action item 1 of your request as you are not requesting documents.

I understand though that the 2016 schedules will be tabled in the next session of Parliament.

Can you confirm that the revised scope of your FOI request is as follows:

Request the schedule and flight manifests including crews of all special purpose flights outside of Australia i.e international flights between January and July of 2017.

Kind regards,

Lucy Skorupa

Case Manager

Freedom of Information

Information Management and Access

Governance & Reform Division

Department of Defence

CP1-6-A007

PO Box 7910 Canberra ACT 2610

P: (02) 6266 3664

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Verity Pane left an annotation ()

Not quite correct that Defence "cannot" action Part 1 (more a case of choosing not to here). Part 1 request could be treated administratively or taken as a request for documents that relate to the publication/non-publication of the special purpose flight schedules (but then the agency would probably slap a exemption on it anyway, but strictly speaking it's a bit misleading to claim "cannot").

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From: alan cole

Delivered

Dear Skorupa, Lucy MRS,
I'm happy to continue with the revised scope and make the FOI request for the second part only

Yours sincerely,

alan cole

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From: Skorupa, Lucy MRS
Department of Defence

UNCLASSIFIED

Dear Mr Cole,

 

I refer to your correspondence, dated 11 July 2017, in which you sought
access, under the Freedom of Information Act 1982 (FOI Act), to:

 

“…the schedule and flight manifests including crews of all special purpose
flights outside of Australia i.e international flights between January and
July of 2017.”

 

The Department of Defence excludes personal email addresses, signatures,
personnel (PMKeyS) numbers and mobile telephone numbers contained in
documents that fall within the scope of a FOI request unless you
specifically request such details.

 

If you do require these personal details, please inform us within five
days of receipt of this email so that the decision maker can consider your
request.

 

On 17 July 2017, Dr Melanie Beacroft, Acting Assistant Director Freedom of
Information, decided that there are no charges associated with processing
your request. Accordingly, the statutory deadline for you to receive a
response to your request expires on 10 August 2017.

 

Should you have any questions relating to your request, please do not
hesitate to contact our office via telephone on (02) 6266 2200 or via
email to [1][email address].

 

Kind regards,

 

 

 

Lucy Skorupa

Case Manager

Freedom of Information

Information Management and Access

Governance & Reform Division

 

Department of Defence

CP1-6-A007

PO Box 7910 Canberra ACT 2610

P: (02) 6266 3664

 

IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.

References

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From: alan cole

Delivered

Dear Skorupa, Lucy MRS,
I do not request the details of personal emails, telephone numbers etc as you stated

Yours sincerely,

alan cole

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From: Skorupa, Lucy MRS
Department of Defence

UNCLASSIFIED

Good afternoon Mr Cole,

Thank you for your response.

Kind regards,

Lucy Skorupa

Case Manager

Freedom of Information

Information Management and Access

Governance & Reform Division

Department of Defence

CP1-6-A007

PO Box 7910 Canberra ACT 2610

P: (02) 6266 3664

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From: Beacroft, Melanie DR
Department of Defence


Attachment FOI 020 1718 Statement of Reasons.pdf
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Attachment FOI Rights of Review.pdf
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UNCLASSIFIED

Good afternoon Mr Cole

Please find attached the Statement of Reasons relating to FOI 020/17/18.

Under the provisions of section 54 of the FOI Act, you are entitled to
request a review of this decision. Your review rights are attached.  

Should you have any questions in regard to this matter please contact this
office.

 

Kind regards,

 

 
Dr Melanie Beacroft
A/Assistant Director, Freedom of Information
Information Management and Access
Governance and Reform Division
 
Department of Defence
CP1-06-005A
PO Box 7910 Canberra ACT 2610
(02) 6266 3685
I work Monday, Tuesday, Wednesday, Thursday
 

IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.

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From: alan cole

Delivered

Dear Beacroft, Melanie DR,
Further to your reply of defering access i did state in my FOI request flight information including flight crews for each flight. as you know the schedule of special purpose flights does not include this information just passengers for each flight. Therefore this information is not going to be released in 2018 as flight crews are not included in those documents. Please could you provide the information i requested or your refusal as to the reasons you will not provide the flight crew information.

Yours sincerely,

alan cole

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Verity Pane left an annotation ()

The FOI decision of the delegate Nicola Viney (who has a bit of a history unfortunately for such things) is nonsensical.

While it is reasonably justified to defer access for documents in the process of shortly being tabled in Parliament, Ms Viney explicitly stated: "A number of documents will be prepared for tabling in Parliament. I identified no documents as currently matching the description of the request."

If none of the documents due to be tabled, fall within the scope of the FOI Request as Ms Viney claims, then access should not be deferred (because Defence has no reasonable basis to defer, as the documents are not currently subject to a Parliamentary process).

What is seems is that Defence is setting up to claim s 24A(1) exemption (documents do not exist), but wants to seek delay before doing so.

I find it unlikely that the documents sought do not exist, given past records, and infer that Defence is not engaging in good faith. Just because the subject matter is the same, does not justify deferment either.

Defence should conduct a proper search, identity those documents in scope, and then process properly. It is disappointing they are not approaching this FOI in good faith.

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alan cole left an annotation ()

Thankyou for that update, well lets see what the response will be to my last reply and then if i can appeal going by the arguments you stated.

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From: Beacroft, Melanie DR
Department of Defence

UNCLASSIFIED

Good afternoon Mr Cole,

My apologies, the omission of information about the flights crews was an administrative oversight.

I suggest you submit an internal review of this decision so that fresh searches can be undertaken.

Can you please advise if this is the course of action you would like to take?

Kind regards,

Dr Melanie Beacroft
A/Assistant Director, Freedom of Information Information Management and Access Governance and Reform Division

Department of Defence
CP1-06-005A
PO Box 7910 Canberra ACT 2610
(02) 6266 3685
I work Monday, Tuesday, Wednesday, Thursday

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From: alan cole

Delivered

Dear Beacroft, Melanie DR,
I would like an administrative review then. but as your response to my foi request did not answer the question i asked i.e including the flight crews should the original question not be answered first before an administrative review ?

Yours sincerely,

alan cole

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Verity Pane left an annotation ()

Where an agency has not handled an FOI in accordance with the good faith obligations and procedural requirements under the FOI Act, a s 70 complaint made be made to the Australian Information Commissioner.

This is a review seperate to the review of the FOI decision itself (it's not an Internal or IC Review).

As the agency appears to concede there have been issues with the original decision, you may wish to take that up. It can be dealt with concurrently, as s 70 review does not stall or pause the FOI itself (which IC review can).

One of the Information Commissioner’s functions is investigating under Part VIIB of the FOI Act agency actions relating to the handling of FOI matters. Any person may complain to the Information Commissioner (s 70(1)).

A complaint must be in writing and identify the agency against which the complaint is made (s 70(2)). The Commissioner’s office must give ‘appropriate assistance’ to anyone who wishes to complain and needs help to formulate their complaint (s 70(3)). This need may arise, for example, if a person has language or literacy difficulties or otherwise needs assistance in ascertaining the scope of an agency’s FOI Act obligations and framing a complaint against the agency.

The Information Commissioner must investigate all complaints unless a qualification in the FOI Act applies (s 69(1)).

The "conduct" issue would be the deferral even though the agency has stated the documents sought are not in those to be tabled, and that it appears the agency has not performed a valid search as required.

It's entirely optional, but the agency may seek to better conform with the FOI Act if its performance is subject to regulatory review by the Information Commissioner for the period going forward.

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From: Beacroft, Melanie DR
Department of Defence

UNCLASSIFIED

Hi Mr Cole,

The internal review process is designed to provide a review of a decision if you think documents are missing or if you are unhappy in some way with what is decided.

The review team will be in touch with you soon.

Thank you,

Dr Melanie Beacroft
A/Assistant Director, Freedom of Information Information Management and Access Governance and Reform Division

Department of Defence
CP1-06-005A
PO Box 7910 Canberra ACT 2610
(02) 6266 3685
I work Monday, Tuesday, Wednesday, Thursday

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From: FOIReview
Department of Defence

UNCLASSIFIED

 Dear Mr Cole

1.      I refer to your email below dated 15 August 2017, in which you
requested an internal review under section 54 of the Freedom of
Information Act 1982 (FOI Act), of the decision dated 10 August 2017 by Ms
Nicola Viney.
 
2.      The decision you received related to your request for access,
under the FOI Act, to:

         ‘Request the schedule and flight manifests including crews of all
special purpose flights outside of Australia i.e international flights
between January and July of 2017.' 
3.      The statutory deadline for you to receive a response from Defence
is 14 September 2017, which is 30 days from the date in which your
application for internal review was received.  

4.      In the meantime, please do not hesitate to contact our office if
you have any questions.

Regards

Freedom of Information Review Team

Governance and Reform Division

Department of Defence

CP1-6-008 | PO Box 7910 | Campbell Park  CANBERRA BC  ACT  2610

Phone:  (02) 6266 4434

E-mail   [1][email address]

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From: FOIReview
Department of Defence


Attachment FOI 020 1718 IR SOR 2.pdf
118K Download View as HTML

Attachment Review Rights Exemption Refusal full release to FOI applicant not third party 60 days to go to the Information Commissioner Current April 2017.pdf
122K Download View as HTML


UNCLASSIFIED

Dear Mr Cole

1. Thank you for your email received on 15 August 2017 , seeking an internal review of the decision you received under the FOI Act.

2. This email is to inform you of the decision by Ms Joanne Anderson, Acting Assistant Secretary Information Management and Access, on your internal review application.

3. Upon review 37 documents were identified.

4. Ms Anderson has decided to:
a. to uphold the original decision to defer access to the “Schedule of Purpose Flights” under section 21(1)(c) [Deferment of access] of FOI Act; and
b. deny access to the remaining information in the manifests under section 33(a)(i) [Documents affecting the security of the commonwealth] and section 47F [Personal privacy] of the FOI Act.

5. Material such as mobile telephone numbers which is considered irrelevant was removed under paragraph 22(1)(b)(ii) [irrelevant matter deleted] of the FOI Act.

6. The statement of reasons detailing Ms Anderson’s decision is attached.

Rights of review

7. The FOI Act provides for rights of review of decisions. Should you be dissatisfied with Ms Anderson’s decision you have the right to seek review. Please find attached a copy of your review rights.

8. Please note that you only have 60 days from the date of receipt of this decision to exercise your right to submit an application to the Australian Information Commissioner for external review.

9. If you have any questions in relation to this matter, please contact this office as we are happy to discuss.

Kind regards

Freedom of Information Review Team
Governance and Reform Division
Department of Defence
CP1-6-008 | PO Box 7910 | Campbell Park CANBERRA BC ACT 2610
Phone: (02) 6266 4434
E-mail: [email address]

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Verity Pane left an annotation ()

From no documents identified in the original decision of Nicola Viney to 37 documents identified in the Internal Review highlights the common abuse by certain agencies of their FOI Act obligations. Defence far too often treats Freedom of Information as Freedom from Information.

At least this time it appears a reasonably proper search took place, and a somewhat vague time period has been provided for the deferment (rather than left open ended). Defence has also tenuously connected the documents to be tabled with the documents in scope this time, in a complete reversal of Nicola Viney's statement in the original decision, which at least provides somewhat of a pretext for deferral.

It was always evident though that Defence would slap exemptions, on some fairly thin pretences, as flagged earlier.

The statement though "I note that previous Defence decisions has disclosed crew details... However, as the security needs of Defence has changed, this information is no longer releasable" deserves scorn, as it lacks the necessary reason, and appears essentially as a throw-away line. Essentially this is a very thin argument that could be made about anyone involved in Defence or even the majority of the APS (much like the ATO claim).

Where information about a Commonwealth official is included in a document because of their usual duties or responsibilities, it is reasonable to disclose unless very specific and narrow factors apply (which have not been satisfied here), and is not personal information, but official information (whereas if the information was obtained in that person's private context, only then would it be personal information). Flight crews of 34SQN do not have a protected status in Defence (unlike SOCOM personnel for example) and therefore arguments made by Defence here are well undermined.

While some of the elements claimed may have some merits (removal of passport number for example is reasonable, as well as any private personal phone numbers), the vagueness is of some concern, and it is clear Defence has cast a very wide net while not giving much transparency. That makes it apparent that it is not behaving ethically here.

When exemptions are claimed agencies must not be vague and be precise about what type of information is being redacted, and give sound and sufficient reason to justify.

All in all, it's a pretty poor decision, although arguably not as woeful as the shambles of the original decision.

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