ABS view on including 16 and 17 year olds in the Marriage Law Postal Survey
Chris Gentle made this Freedom of Information request to Australian Bureau of Statistics
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Australian Bureau of Statistics,
The AEC recently published a media release (1) stating that the ABS’ Marriage Law Postal Survey will not be sent to 16 and 17 year olds as they are not on the electoral roll.
I am making an FOI request for the ABS to provide:
* correspondence, advice and ministerial communication related to the AEC’s or ABS’ analysis of whether 16 and 17 year olds will not be surveyed in the Marriage Law Postal Survey, and
* correspondence, advice and ministerial communication related of the Treasurer’s direction to the ABS (2) with regard to its definition of “elector” for the Marriage Law Postal Survey
Yours sincerely,
Christopher Gentle
(1) http://www.aec.gov.au/media/media-releas...
(2) https://www.legislation.gov.au/Details/F...
Dear Mr Gentle
I refer to your application in which you seek access to documents under
the Freedom of Information Act 1982(ABS reference FOI 201718/12)
regarding:
o Correspondence, advice and ministerial communication related to the
AEC’s or ABS’ analysis of whether 16 and 17 year olds will not be
surveyed in the Marriage Law Postal Survey, and
o Correspondence, advice and ministerial communication related of the
Treasurer’s direction to the ABS with regard to its definition of
“elector” for the Marriage Law Postal Survey
Your request was received by the ABS on the 15 August 2017 and the 30 days
statutory period for processing your request commenced from that date. If
this request will take longer than 30 days to process, we will contact you
to negotiate an extension of time.
You will be notified of any charges in accordance with the Freedom of
Information (Fees and Charges) Regulations, should they apply, in relation
to your request as soon as practicable.
Kind Regards
FOI Contact Officer
Australian Bureau of Statistics
(P) (02) 6252 7203
(E) [1][ABS request email] (W) [2]www.abs.gov.au
The ABS Privacy Policy outlines how the ABS handles any personal
information that you provide to us.
[3]Inactive hide details for Chris Gentle ---15/08/2017 07:13:51
AM---Freedom of Information request - ABS view on including 16 anChris
Gentle ---15/08/2017 07:13:51 AM---Freedom of Information request - ABS
view on including 16 and 17 year olds in the Marriage Law Postal Survey
Freedom of Information request - ABS view on including 16 and 17 year
olds in the Marriage Law Postal Survey
Policy & Legislation Section WDB Chris Gentle 15/08/2017 07:13 AM
*
Basics
Chris Gentle 15/08/2017 07:13 AM
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and 17 year olds in the Marriage Law Postal Survey
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Dear Australian Bureau of Statistics,
The AEC recently published a media release (1) stating that the ABS’
Marriage Law Postal Survey will not be sent to 16 and 17 year olds as they
are not on the electoral roll.
I am making an FOI request for the ABS to provide:
* correspondence, advice and ministerial communication related to the
AEC’s or ABS’ analysis of whether 16 and 17 year olds will not be surveyed
in the Marriage Law Postal Survey, and
* correspondence, advice and ministerial communication related of the
Treasurer’s direction to the ABS (2) with regard to its definition of
“elector” for the Marriage Law Postal Survey
Yours sincerely,
Christopher Gentle
(1) [4]http://www.aec.gov.au/media/media-releas...
(2) [5]https://www.legislation.gov.au/Details/F...
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Dear Mr Gentle
On 30 August 2017, the Department of the Treasury (the department)
accepted a partial transfer of your request to the Australian Bureau of
Statistics (ABS), for the following documents to the under the Freedom of
Information Act 1982 (FOI Act). You requested:
1. Correspondence, advice and ministerial communication related to the
AEC’s or ABS’ analysis of whether 16 and 17 year olds will not be surveyed
in the Marriage Law Postal Survey, and
2. Correspondence, advice and ministerial communication related of the
Treasurer’s direction to the ABS (2) with regard to its definition of
“elector” for the Marriage Law Postal Survey
This email is to advise that the department will be processing part two of
you request for ‘Correspondence, advice and ministerial communication
related of the Treasurer’s direction to the ABS (2) with regard to its
definition of “elector” for the Marriage Law Postal Survey’.
Your request was received by the ABS on 15 August 2017 and the 30 day
statutory period for processing your request commenced from the day after
that date. You should therefore expect a decision from us by 14 September
2017. The period of 30 days may be extended if we need to consult third
parties or for other reasons. We will advise you if this happens.
The department will advise you if a charge is payable to process your
request and the amount of any such charge as soon as possible.
Unless we hear from you, we will assume that you are not seeking staff
names and contact details as part of your request. Where applicable, these
details will be redacted under section 22 of the Act.
If you have any questions in relation to your application, please contact
the FOI Team on 02 6263 2800.
Kind regards
FOI Team
Parliamentary and Legal Services Division
The Treasury, Langton Crescent, Parkes ACT 2600
Phone: (02) 6263 2800
Email: [1][email address]
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Dear FOI,
Thank you for your reply. You are correct in assuming that I do not require staff names and contact details.
Yours sincerely,
Chris Gentle
Dear Mr Gentle
I refer to your request for access to documents under the Freedom of
Information Act 1982 (FOI Act) regarding:
o Correspondence, advice and ministerial communication related to the
AEC’s or ABS’ analysis of whether 16 and 17 year olds will not be
surveyed in the Marriage Law Postal Survey; and
o Correspondence, advice and ministerial communication related of the
Treasurer’s direction to the ABS with regard to its definition of
“elector” for the Marriage Law Postal Survey.
Partial Transfer of Request
I am writing to tell you that I have transferred part of your request to
the Treasury. Under section 16(1) of the FOI Act, I am able to transfer a
request if the requested documents are not in the possession of the ABS,
but in the possession of another agency or if the subject matter of the
document is more closely connected with the functions of another agency.
Accordingly, on 30 August 2017 I transferred the part of your request
which relates to 'Correspondence, advice and ministerial communication
related of the Treasurer’s direction to the ABS with regard to its
definition of “elector” for the Marriage Law Postal Survey' to the
Treasury which has possession of the requested documents and whose
functions are more closely connected to the subject area. The ABS will
continue to process the remaining part of your request.
We received your request on the 15 August 2017 and the 30 day statutory
period for processing your request commenced from the day after that date.
The Treasury Department will treat your request as though it received it
the same day that we did. You should therefore expect a decision from the
Treasury by 14 September 2017. The period of 30 days may be extended
if the Treasury needs to consult third parties or for other reasons. They
will advise you if this happens.
Kind Regards
FOI Contact Officer
Australian Bureau of Statistics
(P) (02) 6252 7203
(E) [1][ABS request email] (W) [2]www.abs.gov.au
The ABS Privacy Policy outlines how the ABS handles any personal
information that you provide to us.
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Dear Mr Gentle,
In response to your Freedom of Information request received on 15 August
2017, please find attached the formal response from the ABS.
(See attached file: FOI 201718-12 - Decision Letter.pdf)
Should you have any questions regarding this please feel free to contact
the ABS FOI Contact Officer by telephoning (02) 6252 7203 or emailing
[1][ABS request email]
Kind Regards
FOI Contact Officer
Australian Bureau of Statistics
(P) (02) 6252 7203
(E) [2][ABS request email] (W) [3]www.abs.gov.au
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Dear FOI,
I have not yet received an update on progress for my FOI request referred to Treasury by ABS. Could you update me on the progress of my request?
Yours sincerely,
Chris Gentle
Dear Parliamentary and Legal Services Division, Treasury Department,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of The Treasury's handling of my FOI request 'ABS view on including 16 and 17 year olds in the Marriage Law Postal Survey' that was partially transferred to treasury from the ABS.
The statutory time allocated for a response to my request has passed and I would appreciate an update about when the request is likely to be completed.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
Chris Gentle
James Baldwin left an annotation ()
Hi Chris,
If the statutory time has expired, the request is deemed refused and the decision to refuse is deemed to be made by the Secretary of the Department.
There is no internal review from that deemed refusal. Your only option is to apply to OAIC.
Good luck.
James
Verity Pane left an annotation ()
Where an agency fails to make a decision before an FOI statutory deadline expires, the FOI decision is classified as a “deemed refusal”. For benefit, I have reproduced the relevant sections of the Australian Information Commissioner’s s 93A Guidelines to agencies
3.131 A ‘deemed refusal’ occurs if the time for making a decision on a request for access to a document has expired and an applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC).
3.134 The consequence of a deemed refusal is that an applicant may apply for IC review (s 54L(2)(a)).
3.135 Where a decision is deemed to have been made before an initial decision is made, the agency or minister continues to have an obligation to make a decision on the FOI request. This obligation continues until any IC review of the deemed decision is finalised.
As mentioned by the other annotation, you don’t have to apply for Internal Review first, before seeking IC Review, for a deemed refusal.
Note also that as the agency failed to respond before deadline lapsed, the agency is restricted in applying any charges going forward.
4.16 Section 15(5)(b) of the Act provides that an applicant is to be notified of a decision on a request not later than 30 days after an agency or minister received the request. This period can be extended by an agency or minister to facilitate consultation with an affected third party or foreign government or organisation (ss 15(6),(8)), by agreement with the applicant (s 15AA), or by the Information Commissioner (s 15AB). If an applicant is not notified of a decision on a request within the statutory time limit (including any extension), the agency or minister cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (regs 5(2), (3)). If a deposit was paid by the applicant it is to be refunded (reg 14).
Dear Mr Gentle
Our acknowledgement of 4 September 2107 advised that the department has
accepted a partial transfer of you FOI request to the Australian Bureau of
Statistics (ABS). That part is:
2. Correspondence, advice and ministerial communication related of the
Treasurer’s direction to the ABS (2) with regard to its definition of
“elector” for the Marriage Law Postal Survey.
We note your original request to the ABS was made on 15 August 2017.
On 9 August 2017, the Treasurer made a direction to the Australian
Statistician in the Census and Statistics (Statistical Information)
Direction 2017 (the Original Direction). The Original Direction was
registered on the Federal Register of Legislation on the same day, 9
August 2017. On 16 August 2017 (and registered the same day), the Minster
for Finance amended the Original Direction by the Census and Statistics
(Statistical Information) Amendment Direction 2017 (the Amendment
Direction) (Attached).
The Explanatory Statement of the Amendment Direction (Attached) states in
part:
‘The purpose of the Census and Statistics (Statistical Information)
Amendment Direction 2017 (the amending Direction) is to clarify the
statistical information to be published and define eligibility for
participation in the statistical survey as those persons who would be
entitled to vote in a federal election.’ [Emphasis added.]
The Explanatory Statement also states:
‘Section 3(4) amends the original Direction to clarify eligibility for
participation in the statistical survey.’
Section 3(4) of the Original Direction contains the definition of
‘elector’.
A consolidated version of the Census and Statistics (Statistical
Information) Direction 2017 is also attached for your information. All
the attached documents are publicly available on the Federal Register of
Legislation [1]https://www.legislation.gov.au/ .
On the basis that the Amendment Direction was made and registered the day
after your FOI original request, we ask whether you wish to proceed with
your FOI request?
If you do wish to withdraw the request could you please notify us.
Kind regards
FOI Team
Parliamentary and Legal Services Division
The Treasury, Langton Crescent, Parkes ACT 2600
Phone: (02) 6263 2800
Email: [2][email address]
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Dear FOI,
Thank you for your reply. I would like you to proceed with my request.
Yours sincerely,
Chris Gentle
Chris Gentle left an annotation ()
Thank you James and Verity for your advice on pursuing my request with Treasury. As you can see Treasury have responded with a question after the deadline. I presume this means that Treasury will comply with the request, but not the response time set out in the legislation.
Would it be advisable to ask for a new deadline to be set, or should I decide a deadline myself and initiate a review then (if required)?
Verity Pane left an annotation ()
Under s 16 of the Freedom of Information Act 1982, agencies can transfer all or part of an FOI application to another agency, which is what occurred with your application, with the ABS being the transferring agency and Treasury being the receiving agency.
A transferred request is deemed to have been received by the receiving agency at the time it was received by the transferring agency (s 16(5)(b)). In other words, the decision-making period commences when the request was originally received, and the receiving agency or minister is not given extra time.
This means Treasury was obligated to recognise the FOI application as being made on 15 August 2017 (even though it did not accept the transfer until 30 August 2017) and thus the 30 day statutory period for processing your request commenced on 16 August 2017 (the day after you made your application), and therefore the statutory due date was 14 September
2017. As Treasury gave you no notice of any third party consultation, nor sought s 15AA or s 15AB extension, that due date remained unchanged and because Treasury failed to make a decision within that period, a deemed refusal occurred.
When Treasury did respond on 27 September, all it did was provide you publicly available documents and that isn’t a full response to the scope of your application. I’d look at referring to the Commissioner.
For background, have included extracts of the Guidelines.
Transferring requests to other agencies
3.57 Section 16 provides for the transfer of FOI requests between agencies and ministers. A transfer can occur in some circumstances by agreement between agencies or ministers; in other circumstances a transfer is mandatory (see [3.6]).
3.58 An agency or minister may partially or wholly transfer a request (s 16(3A)). When an agency or minister receives a request for documents, some of which are in the possession of different agencies, the request is notionally divided into different requests. Each agency or minister then has obligations to make their own response to the request in accordance with the Act.
3.60 As the transfer of an FOI request under s 16 affects the obligations of agencies and ministers, consultation between them is essential. Informal consultation is particularly important in the case of complex requests or requests where an applicant has requested the same documents from numerous agencies or ministers. Agencies and ministers’ offices are encouraged to consult each other as soon as possible and, where a request may contain more than one part, agree promptly as to who will be responsible for which part.
3.61 The agency or minister who first receives an FOI request is referred to in the following paragraphs as the ‘transferring agency’, and the agency or minister who receives the transferred FOI request is referred to as the ‘receiving agency’.
Timeframe
3.62 A transferred request is deemed to have been received by the receiving agency at the time it was received by the transferring agency (s 16(5)(b)). In other words, the decision-making period commences when the request was originally received, and the receiving agency or minister is not given extra time. It is therefore important that agencies and ministers give early consideration to whether a request should be transferred. This will enable the notices to the applicant under s 15(5)(a) (acknowledgement of receipt) and s 16(4) (transfer of request) to be combined and ensure that the receiving agency or minister is not disadvantaged by delay. Further information about the timeframe for notifying a decision under the FOI Act is below at [3.120].
Notifying the applicant
3.63 The transferring agency must advise the applicant that the request has been transferred (s 16(4)). The notification should state when the request was transferred and why, and the name and contact details of the agency or minister to whom the request was transferred. Particular care needs to be taken in relation to certain documents whose existence should neither be confirmed nor denied (see [3.68]). Where it is necessary to enable the receiving agency to deal with the request, the transferring agency should also send a copy of the relevant document to the receiving agency (s 16(4)).
Mandatory transfer of requests
3.67 Section 16 provides for the mandatory transfer of requests of certain types specified in Table 1. This requirement partially overlaps with s 7, which provides that all agencies and ministers are exempt from the operation of the FOI Act in relation to intelligence agency documents and defence intelligence documents (see Part 2 of these Guidelines).
Timeframe for notifying a decision
Default period for requests for access
3.120 The obligation on an agency or minister to notify an applicant that a request has been received, and to make and notify a decision on the request within the statutory timeframe, commences upon receipt of a request that meets the formal requirements in ss 15(2),(2A) (see [3.48]). These Guidelines refer to this period as the processing period.
3.121 An agency or minister must, as soon as practicable, and within 14 days of receiving a request, take all reasonable steps to enable the applicant to be notified that the request has been received (s 15(5)(a)). This requirement will be met by sending a notice of receipt to the contact address provided by the applicant. The 14-day timeframe commences on the day after the day the request is received in an agency or minister’s office and not from the time it is received in the area where the request is processed (for example, the FOI team).
3.122 An agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on the request (s 15(5)(b)). The 30-day processing period commences on the day after the day the agency or minister is taken to have received a request that meets the formal requirements of s s15(2),(2A). An agency should act promptly to assist an applicant whose request does not meet the formal requirements. Table 2 below sets out the time of receipt.
3.124 The processing period refers to calendar days, not business (working) days. This will include any public holidays that fall within the processing period. If the last day for notifying a decision falls on a Saturday, Sunday or a public holiday, the timeframe will expire on the first day following which is none of those days. The 30-day processing period does not include:
• the time that an agency may take in a request consultation process to decide if a practical refusal reason exists (s 24AB(8))
• the time elapsing between an applicant being notified that a charge is payable and either the applicant paying the charge (or a deposit on account of the charge) or the agency varying the decision that a charge is payable (s 31).
In summary, the time spent on those matters is to be disregarded in calculating the processing period.
Verity Pane left an annotation ()
Just an addendum to remind that putting in for an IC Review on a deemed refusal doesn’t relieve the agency from its obligations in respect to the FOI, it is still obliged to satisfy the FOI, so don’t withdraw or vary your FOI, leave it extant.
Also note that while ‘Document’ is defined broadly in the FOI Act as including any paper or other material on which there is writing or a mark, figure or symbol; electronically stored information; maps, plans, drawings and photographs; and any article from which sounds, images or writing are capable of being reproduced, it does not include material retained for reference purposes that is otherwise publicly available, such instruments published on the Federal Register of Legislation.
The Act does not apply to documents of the following kinds that are open to public access under other arrangements:
o the document is already publicly available, as part of a public register (s 12(1)(b)).
Just ask Treasury why they’ve only sent you publicly available documents on the Federal Register of Legislation, as if the application was one of administrative access, but don’t appear to have conducted a search for documents under the FOI Act (which includes their internal documents).
Dear FOI,
As per my previous correspondence, please continue to gather the information requested in my original FOI request. Please also provide guidance about Treasury's deadline for this request now that the statutory response time has passed.
I would also like to know why you responded to my FOI with documents that are already publicly available rather than responsive to the FOI request.
Yours sincerely,
Chris Gentle
Chris Gentle left an annotation ()
Thank you again Verity.
I have sent a follow-up to Treasury and flagged it as an internal review. I hope that is correct. If I understand correctly I can refer to the Commissioner once the internal review completes.
Dear Mr Gentle
Please find attached correspondence regarding your FOI request, 2187.
Regards
FOI Team
Communications and Parliamentary Division
The Treasury, Langton Crescent, Parkes ACT 2600
Phone: (02) 6263 2800
Email: [1][email address]
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Chris Gentle left an annotation ()
Still waiting for Treasury to return information from their delegated FOI request.