Trans-Pacific Partnership Agreement

Brendan Molloy made this Freedom of Information request to Department of Foreign Affairs and Trade

The request was partially successful.

From: Brendan Molloy

Delivered

Dear Department of Foreign Affairs and Trade,

I hereby request, under the Freedom of Information Act (1982), copies of the following documents, available as of the date of this letter:

(a) the portions attributed to the Australian delegation of the most recent draft or negotiating text of the Trans-Pacific Partnership Agreement - Intellectual Property chapter; and
(b) documents relating to the positions of the Australian delegation regarding the Intellectual Property chapter.

I also make the application that all costs for the processing of this request be waived on the grounds that the release of this information is in the public interest, will enhance the transparency of the process and the public debate surrounding potential legislative changes.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: FOI
Department of Foreign Affairs and Trade

Our Ref: 1211-F452

Dear Mr Molloy,

Re: Freedom of Information (FOI) Request

Thank you for your email dated 21 November 2012 in which you seek access under the Freedom of Information Act 1982 to:

a) the portions attributed to the Australian delegation of the most recent draft or negotiating text of the Trans-Pacific Partnership Agreement - Intellectual Property chapter; and
b) documents relating to the positions of the Australian delegation regarding the Intellectual Property chapter.

Searches are now being undertaken in relevant areas of the Department for documents relevant to your request. I will contact you again once the searches have been completed.

At the outset I would like to take this opportunity to ensure you are aware that the information you can receive under FOI is limited. In particular, if you are seeking access to information provided to the Department by someone other than you, we are required to consult with that person before releasing their information to you. The FOI Act provides that, an agency is obliged to consult with third parties giving him/her the opportunity to voice their concerns on the release of that information. This does not confer the right of veto on the release of that information. The Department’s decision-maker will, however, take into consideration those concerns when making their decision.

Scope of request:
If it emerges that the scope of your request is unclear or is too large for processing, the Department will contact you to discuss re-scoping the request. Please note that the statutory timeframe for the processing of requests begins at the point that an agreed scope for your request is reached. A maximum of two attempts at revising the scope of a request to make it able to be processed will be undertaken.

Timing of release:
As the subject matter of your request will require DFAT to upload any documents released to you to the Department’s FOI Disclosure Log, I take this opportunity to advise you that the Department’s policy is to upload released documents within 24 hours of your receipt of the documents.

Should you require any further information, please do not hesitate to contact your case officer, Ada Cheung, on (02) 6261 3470, by email to [DFAT request email], or by letter to the Department’s mailing address.

Yours sincerely

Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: FOI
Department of Foreign Affairs and Trade


Attachment Molloy outcome letter.pdf
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Dear Mr Molloy,

Please find attached the outcome letter regarding your FOI request.

Yours sincerely,

Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Brendan Molloy

Delivered

Dear Mr Yardley,

Thank you for your letter.

In regards to Part A of my request, in order to best attempt to revise this part, could you please give me more background on the reasons for rejection at this stage--as required by s26(1)(a)--by answering the following questions:

1) What necessitates that all other negotiating parties be consulted in order to have Part A of the request completed?
2) What are the other nine Commonwealth agencies mentioned and for what reasons must they be consulted?

This information is imperative to best understand how to revise my request such that it could be fulfilled.

As for Part B, I ask what would be considered a reasonable scope as to allow this part of the request to be fulfilled.

I look forward to your correspondence.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: FOI
Department of Foreign Affairs and Trade

Dear Mr Molloy,

Thank you for your response below regarding the potential re-scoping of your FOI request. As key staff - including in the relevant line area - are currently on leave, we will not be in a position to respond with suggestions for re-scoping Part B of your request until January 2013.

In the interim, I am able to provide responses to your questions concerning Part A of your request. The other parties to the Agreement would need to be consulted as it is a principle of treaty law that a text under negotiation remains confidential between the parties until it is signed. Therefore, any proposal to release draft text would require the consent of all the other parties. Regarding the other Commonwealth Agencies, we are required to consult with other agencies regarding any proposed release of information held by DFAT which was authored by them. In this case, the other agencies involved include the Attorney-General's Department, the Department of Prime Minister and Cabinet, IP Australia, the Department of Health and Ageing, Customs, the Australian Federal Police, the Department of the Environment, the Department of Broadband, Communications & the Digital Economy, and the Department of Agriculture, Fisheries and Forestry.

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

Thank you for your response.

My understanding is that this consultation period will expire on December 24. I'm am unsure what action, if any, I must take in order for this request to continue to be processed as the 14 days nears its end. If possible, I would like to consent to the extension of this period by another 14 days as to allow the persons on leave who may assist me in refining the scope of the request to return.

I appreciate the effort that you have made to respond to my questions, but unfortunately I am unsatisfied with the vague response of "a principle of treaty law" in answer to my first question in the previous email.

I refer to item 2 of the TPP Confidentiality Letter from September 2011[1] to which Australia has apparently agreed to abide by, "while the negotiating documents are confidential, each participant may mail, e-mail, fax, or discuss these documents over unsecured lines with the groups of people mentioned above (i.e., government officials and persons who participate in the domestic consultation process)."

Pirate Party Australia has been making representations to DFAT since the first available public consultation on TPP and therefore have been directly participating in the domestic consultation process since that was possible. I am simply requesting that DFAT meets their requirements under this letter by releasing these documents to us: the domestic stakeholders.

I look forward to further correspondence.

[1] http://www.dfat.gov.au/fta/tpp/111221-tp...

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From: FOI
Department of Foreign Affairs and Trade

Dear Mr Molloy,

Thank you for your response below. No further action is required on your part concerning an extension of time for the s 24 consultations. We will contact you again after we have had the opportunity to consult with key staff members on the options for re-scoping your request.

The principle of the confidentiality of treaty texts is expressed, inter alia, in the Joint Standing Committee on Treaties (JSCOT) Report number 126 - paras 7.2f: http://www.aph.gov.au/Parliamentary_Busi...

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Brendan Molloy

Delivered

To whom it may concern,

I am still waiting for a reply regarding assistance with re-scoping my request. It has now been 25 days since the last email, and I am concerned that certain legislatively defined extension periods may have expired.

Please respond as soon as possible regarding my possibilities for re-scoping.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: FOI
Department of Foreign Affairs and Trade

Dear Mr Molloy,

As previously discussed, key personnel in the relevant line area have been away during the summer holiday period. Some relevant staff are now back in the office, and I had useful discussions with them yesterday. Our preliminary view is that an FOI request for specific briefing materials such as PPQs, Estimates briefings, and briefings prepared for meetings with various stakeholders would both be of a scope that the Department is able to process, as well as providing you with the information which you are seeking.

In order to provide you with a considered view on potentially rescoping your request, we need to consult with the lead negotiator on IP, who has the subject-matter expertise and is familiar with the file. Due to staff absences, we will not be in a position to do this until the end of January. There are no specific statutory timeframes applicable in the current circumstances, as we are in the extended consultation period provided for in s 24AB of the FOI Act.

Please feel free to contact me on 02 6261 3470 if you would like to discuss this further.

Yours sincerely,

Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

Thank you for your prompt and detailed response, as my concerns have been allayed for now.

I look forward to further correspondence.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

I was wondering if I could get an update on this request.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: FOI
Department of Foreign Affairs and Trade

Dear Mr Molloy,

I apologise for the delay in responding - I have just returned after a couple of weeks out of the office.

As foreshadowed in my earlier e-mail, I have just had the opportunity to consult with the chief negotiator. We suggest that you may wish to consider re-scoping your FOI request along the following lines:

The most recent and/or the most comprehensive PPQs and Senate Estimates Briefings, and briefings prepared for meetings with various stakeholders on the Australian Government's position on the current negotiating text of the trans-Pacific Partnership Agreement - Intellectual Property chapter.

Please feel free to contact me on (02) 6261 3470 if you wish to discuss this further.

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

I consent to rescoping the request as follows:

The most recent and comprehensive PPQs and Senate Estimates Briefings, and briefings prepared for meetings with various stakeholders on the Australian Government's position on the current negotiating text of the Trans-Pacific Partnership Agreement - Intellectual Property chapter.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: FOI
Department of Foreign Affairs and Trade

Dear Mr Molloy

Your re-scoped FOI request below is acknowledged.
Searches will now be undertaken for relevant material. You will be contacted once the searches are complete.
Should you require any further information, please do not hesitate to contact us.

Yours sincerely

Freedom of Information and Privacy Law Section
DFAT

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From: Brendan Molloy

Delivered

What is the deadline for this search being undertaken to be completed?

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: FOI
Department of Foreign Affairs and Trade

Dear Mr Molloy,

As this is a fresh FOI request, the initial 30-day statutory time period began today, as the day after the request was received (see s 15 (5)(b) of the FOI Act).

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Cheung, Ada
Department of Foreign Affairs and Trade


Attachment 1302 F501 Charges letter.PDF.pdf
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Dear Mr Molloy,

Please find attached the charges letter in relation to your FOI request.

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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Brendan Molloy left an annotation ()

If you believe this request should be considered in the public interest, please sign this petition: http://petitions.pirateparty.org.au/tpp-...

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From: Brendan Molloy

Delivered

To whom it may concern,

In regard to a request I made under the Freedom of Information Act 1982 (FOI Ref: 1302-F501), I am of the firm belief that this information is in the public interest and therefore any charges for which I have been deemed liable should not be imposed.

The letter I received from Ada Cheung (Acting Director, Freedom of Information and Privacy Law Section), dated 22 February 2013, contains a preliminary assessment that the charge for this request is $390.66.

I hereby contest this charge on the grounds that the giving of access to the requested information "is in the general public interest or in the interest of a substantial section of the public."

The Trans-Pacific Partnership Agreement, being a comprehensive agreement, has the potential to have a wide array of impacts on Australian life such as through legislative change and/or changes to the economic environment. It is for these reasons and more that I believe that this request is in the public interest.

As pharmaceutical organisations continue to pressure negotiators to add draconian protection measures into this treaty, it is of paramount importance that DFAT is more transparent than ever when it comes to disclosing negotiating positions on matters that could require changes to our domestic IP regime.

DFAT has previously negotiated treaties regarded as not requiring changes to our domestic regime, yet it has been successfully argued that ACTA could require legislative change in order to be ratified, as stated in the JSCT report. It is in the public interest that matters such as this are resolved long before the signature hits the document.

With the leaking of several chapters of the agreement in the past, the inability for DFAT to release any content from the actual treaty, and the general secrecy surrounding these treaty negotiations, it is of paramount importance that DFAT release these documents to allow public debate and discussion to be based around reality, and not hearsay, rumours and leaks.

Furthermore, I took the opportunity to consult with the community regarding this request.

You should also have received several letters from an array of representatives within the Australian community regarding the public interest nature of this request.

Please also see the result of the following petition, signed by 126 individuals: http://brendan.so/files/tpp-foi-petition....

The petition followed the same protocol that is sufficient to be considered valid for submission to the Senate, and the original petition can be found here: http://petitions.pirateparty.org.au/tpp-...

The arguments herein should be sufficient to fulfil the requirement of demonstrating that the request is in the interest of at least a substantial section of the public, and therefore the fee should be waived.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: Scott, John
Department of Foreign Affairs and Trade


Attachment 1302 F501 Letter reduction in charge.PDF.pdf
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Dear Mr Molloy

Your email of 6 March 2013 in which you seek a waiver of costs associated with the processing of your FOI request refers.
Please find attached the Department's response on this matter. The letter is self-explanatory.

Freedom of Information and Privacy Law Section
Domestic Law Branch

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

I sincerely appreciate the time and effort you have taken in answering my request to waive the fees for my FOI request in great detail and made a strong argument for the balance of the release being in the public interest and of public interest, and the need to recoup the cost of processing FOI requests.

I would also like to recognise your efforts in finding a workable compromise. However, I would like you to reconsider your decision not to waive the FOI fees. While I completely understand the need of the FOI system to be sustainable, I believe that there is a greater overriding principle in this case: accountable and transparent policy making.

Australia, and democracies in general, attempt to engage citizens in policy making. This engagement is at the core of the democratic idea - so important that it is part of the name itself (demos kratos - rule of the common people). Transparency as a value is directly derived from the idea of the rule of the people, for how would the common people be able to rule in a representative democracy without knowledge of the policy that is made in their name? For further discussion of this important issue, I would like to refer you to Research Paper no. 1 2011–12 in the parliament library publications[1].

While general policy making is relatively transparent, the negotiation of international treaties and trade agreements is notoriously opaque. I do not wish to discuss the reasons for the lack of transparency because that would require me to go into a speculative tangent, but instead use another international treaty - ACTA - as a case study in the effect of the lack of transparency. The secrecy, the consequent leak of draft copies, the resulting public outcry and complete rejection of the agreement by the European parliament has clearly shown that the treaty was contrary to the public interest. A good summary is available on Wikipedia[2].

Because of this lack of transparency, the clear conflict with the public interest and the fact that these agreements end up as legislation in Australia with significant pressure to ratify a signed treaty, it is my intention to bring as much transparency into this process as possible. I see it as an important endeavour and a democratic imperative.

Introducing a barrier in the form of a payment for access to information that would increase transparency and hence public participation in policy making - goes contrary to these principles and goals. It is not the amount that is to be paid to access this information, it is the idea that a citizen has to pay in order to participate in the legislative process which is an inherent right in a democracy.

Therefore, I request that you waive this fee, as the principle of transparency in legislation is in the public interest.

[1] http://www.aph.gov.au/About_Parliament/P...
[2] http://en.wikipedia.org/wiki/Anti-Counte...

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: Cheung, Ada
Department of Foreign Affairs and Trade

Dear Mr Molloy,

Thank you for your e-mail containing further submissions regarding the charges in relation to your FOI request.

I do not have the discretion to review my decision of 8 March 2013. As noted in my letter, your review options are to seek an internal review, or to request that the Informational Commissioner conduct a review.

Please confirm if you are requesting an internal review of this decision, pursuant to section 53A(e) of the FOI Act. An internal review would be conducted by a senior departmental officer who was not involved in the original decision, but who will be provided with all relevant material in order to make a fresh decision in this matter. A decision would be made within 30 days of your request for internal review.

On the other hand, should you wish to make a request to the Information Commissioner for a review of the decision, please contact the OAIC direct - the contact details are provided in the letter.

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

Thank you for your response.

I do therefore request an internal review of this decision. I would appreciate it if you could ensure that the last email is forwarded to the officer who will be handling the review.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: Scott, John
Department of Foreign Affairs and Trade


Attachment F501 IR decision letter.pdf
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Dear Mr Molloy

Your email below refers.
Please find attached the Department's internal review of its decision to impose a charge to process your request.
Regards

Freedom of Information and Privacy Law Section
Domestic Law Branch
Department of Foreign Affairs and Trade

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From: Brendan Molloy

Delivered

Dear Ms Cheung,

I have sent a money order for the amount of $195.35 to the address specified in the original fees letter.

I expect that there will be no further delay in the processing of this freedom of information request.

--
Regards,

Brendan Molloy
Secretary
Pirate Party Australia

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From: Cheung, Ada
Department of Foreign Affairs and Trade

Dear Mr Molloy,

In accordance with s 31 of the FOI Act, the statutory clock will restart when your payment is received by DFAT.

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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From: Scott, John
Department of Foreign Affairs and Trade


Attachment 1302 F501 Receipt.PDF.pdf
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From: Cheung, Ada
Department of Foreign Affairs and Trade


Attachment img 415171922.pdf
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Attachment img 415171934.pdf
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Dear Mr Molloy,
 
Please find attached the decision-maker’s letter, the document schedule,
and the documents being released in response to your FOI request.
 
Yours sincerely,
 
Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel:  +61 2 6261 3470
Fax:  +61 2 6261 2144
 
 
 

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From: Scott, John
Department of Foreign Affairs and Trade


Attachment img 415171922.pdf
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Attachment img 415171934.pdf
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Attachment 1302 F501 Access decision letter.pdf
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Dear Mr Molloy
 
Please find attached the decision-maker’s letter which Ms Cheung
inadvertently omitted to include in her message below.
 
Freedom of Information and Privacy Law Section
Domestic Law Branch
 
 
_______________________________
From: Cheung, Ada
Sent: Monday, 15 April 2013 5:25 PM
To: Brendan Molloy ([1][FOI #18 email])
Subject: FOI request - outcome [SEC=UNCLASSIFIED]
 
 
Dear Mr Molloy,
 
Please find attached the decision-maker’s letter, the document schedule,
and the documents being released in response to your FOI request.
 
Yours sincerely,
 
Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel:  +61 2 6261 3470
Fax:  +61 2 6261 2144
 
 
 

References

Visible links
1. mailto:[FOI #18 email]

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Henare Degan left an annotation ()

Article about this request: "DFAT keeps Australians in dark on TPP stance" http://www.itnews.com.au/News/339897,dfa...

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