Dear Department of Agriculture and Water Resources,

In 2015 the Commonwealth Attorney-General, under Freedom of Information, released a list of Government Agencies, Departments and Authorities that had applied for ongoing access to Telecommunication Data of Australians.

The Commonwealth Department of Agriculture was present in the two lists released under the FOI release, having applied for access to both historical Telecommunications Data and ongoing Telecommunications Data of Australians.

I therefore request the following Government Information:

a) Documents relating to the Commonwealth Department of Agriculture's consideration and decision to apply for ongoing access to Telecommunications Data as per the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;

b) The date of each Application made by Commonwealth Department of Agriculture for access to Telecommunications Data under the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;

c) Documents relating to how Commonwealth Department of Agriculture deals with the privacy of data obtained through access to ongoing access to Telecommunications Data as per TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979, including how the data received is obtained, assessed, stored and ultimately destroyed;

d) The number of documents containing data obtained by the Commonwealth Department of Agriculture through its ongoing access to Telecommunication Data; and

e) The number of documents containing data obtained by the Commonwealth Department of Agriculture through its ongoing access to Telecommunication Data that Council has determined are not likely to be required for a permitted purpose and therefore has destroyed, for the period of time from since the commencement of ongoing access to the data was granted until 17th March 2017.

For the avoidance of doubt, each reference to Commonwealth Department of Agriculture also includes the renamed Commonwealth Department of Agriculture and Water Resources.

To assist you with your processing of your response, I am interested primarily in the following points, which I consider to be of significant public interest:

1) why the Commonwealth Department of Agriculture and Water Resources thinks that it requires access to the Telecommunications Data of Australians, considering there appears to be very few legitimate reasons that the Commonwealth Department of Agriculture and Water Resources would require ongoing access to the phonecall and internet browsing details of Australians to further its policy development & implementation role, which is stated on its website as being:

"develops and implements policies and programmes to ensure Australia's agricultural, fisheries, food and fore​stry indust​ries remain competitive, profitable and sustainable, and supports the sustainable and productive management and use of rivers and water resources"; and

2) the scale of Telecommunications Data of Australians being obtained, handled, stored and ultimately destroyed by Commonwealth Department of Agriculture and Water Resources.

If this can be answered as informal request, please do so.

Otherwise, please proceed with this as a formal request under the Freedom of Information principles & framework, i.e. the Freedom of Information Act 1982 & other associated guidelines and regulations.

Yours faithfully,

Richard Smith

Dear Ms Nolte-Crimp,

RE: FOI 2016/17-59

Thank you for your response of 24 March 2017 regarding my recent request for Government Information under the Freedom of Information Act 1982.

I do not agree with the decision-maker’s proposition in your letter that my FOI request of 19 March 2017 did not provide sufficient information for a responsible officer of the Department to identify the document(s) I am requesting be released.

I will address each part of my request in turn, with respect to the requirements of s15(2)(b) of the Act, below:

My request in a) is very specific. This request is in 2 parts and specifically asks for:

1. the document(s) where Department’s executive decision making organ, for example what is commonly referred to as the “Senior Management Team” or “Executive Leadership Team”, discussed applying for access to Telecommunication Data prior to access being first granted. These documents would usually take the form of meeting minutes where the issue is discussed, and considered. It could also be a discussion paper or briefing note/minute where the issue is described and a recommendation is made; and
2. the document(s) showing when the Department’s executive decision making organ made the decision. Again this would normally be expected to be meeting minutes where the result of the decision is described and the resulting actions are listed such as drafting a letter to the Attorney-General requesting access to Telecommunications Data.

My request as made does indeed therefore satisfy section s15(2)(b) of the Act in that it does “provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”.

It would be a reasonable assumption that the officer responsible for discharging the Freedom of Information function of the Department would be able to identify the minutes or briefing paper relating to the departmental decision making in which the Department decides to request sensitive information under an additional power under Telecommunications Interception legislation.

My request in b) is also very specific. This request specifically asks for a list of every date that the Department of Agriculture and Water Resources requested access to Telecommunications Data.

Again I take the view that it is a reasonable assumption that the officer responsible for discharging the Freedom of Information function of the Department would be able to easily identify and collate the dates of official communications with the Attorney-General requesting access to sensitive Telecommunication Data.

The antithesis of this situation would be to suggest that Departmental requests for access to Telecommunication Data from the Attorney-General happen so frequently and at such an informal level that it is hard to identify such requests. I do not think it is reasonable to assume this state of affairs exists.

My request in d) is a specific request to collate the number of documents obtained through access to Telecommunication Data and provide me with a document listing the final sum. It is a reasonable assumption that the Department has sufficient record keeping of sensitive data that this exercise should be a trivial one.

Following that, my request in e) is a specific request to collate the number of documents that have been destroyed, having been originally obtained through access to Telecommunication Data and provide me with a document listing the final sum of documents destroyed. Again the Department’s record keeping should allow a quick summation of this information.

The timeframe relating to my requests d) and e) follows logically to be from the date of the granting of the Department’s initial request as identified in a) up to and including the 19 March 2017.

I do acknowledge that I have made a typing error in e) which you have identified in your correspondence. Accordingly, please substitute “that the Department” for the words “that Council” to correct this minor error.

In summary, my FOI requests a) through e) go to the Department’s handling of very sensitive information and thus the standard of record keeping should be commensurate with the sensitivity of the information. Accessing and reporting on this information should therefore not require substantial and unreasonable diversion of departmental resources.

Considering that I have illustrated above that all parts of my request, as they were made and without modification, are for specific Government Information that it can be reasonably assumed can be readily identified, I am of the opinion that a practical refusal reason does not exist under s24AA(1)(a)(b) of the Act.

It follows then that s24AB of the Act does not yet apply to this request and I therefore expect my request of 19 March 2017 for Government Information to be actioned by the Department of Agriculture & Water Resources, according to the initial timeframe applying to my request. i.e. I am expecting a reply within 30 days of 19 March 2017.

If this is not the case, considering the public interest importance of this information, I would be amenable for the Department to request an extension to supplying information via a request under s15AA of the Act.

I await your response

Yours sincerely,

Richard Smith

Dear Department of Agriculture and Water Resources,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of Agriculture and Water Resources’ handling of my FOI request of 19 March 2017 (Ref: FOI 2016/17-59) 'Documents relating to Department's request for ongoing access to Telecommunications Data'.

Internal Review of Department's Refusal to provide Government Information

I advise that in processing my application for Government Information, the Department has erred in the following ways:

1. Not correctly applying s17 of the Act to my request;
2. Not correctly undertaking a request consultation process; and
3. Acting contrary to the spirit & aim of the Act, namely s3.

Internal Review

I advise that I seek that the internal review consider the following issues:

1. Not correctly applying s17 of the Act to my request

I contend that the Department has acted in a way that has caused it to err in not applying s17 of the Act to my request for Government Information.

Namely where
"it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
the agency could produce a written document containing the information in discrete form by:

(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information;

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession."

I contend that the Government Information that is subject to my request does take the form of information as contemplated by s17.

In not complying with s17 of the Act and instead just denying my request, the Department has erred in its obligations under the Act.

2. The Department has not properly undertaken a request consultation process

The reply from the Department on 24 March 2017 did satisfy the requirement of s24AB(2), in that it started the 14 day consultation period.

However the requirements of s24AB(3) and s24AB(4)(b) have not been followed by the Department, i.e. it has not provided reasonable assistance to revise request.

Section 24AB states:
“(3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.

(4) For the purposes of subsection (3), reasonable steps includes the following:
(b) providing the applicant with any information that would assist the applicant to revise the request.”

My reply of 29 March to the Department was the applicant complying with s24AB(3) of the Act, in that I wrote detailed reasons to assist the Department in understanding the scope of my request.

There has been no further contact from the Department since my reply of 29 March as part of the request consultation process, apart from the Letter of 19th April refusing to grant access to Government Information.

In effect, the Department has simply in effect said no to my request and not taken reasonable steps to assist me, even though I attempted to revise my request as per s24AB(3) in my letter of 29 March. There has been no real attempt in the department to work with me to assist me to revise my request.

3. Acting contrary to the spirit & aim of the Act, namely s3

Section 3 of the Act states:
“The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.”

In refusing to assist me, as described above, the Department is not discharging its legislated duty to “facilitate and promote public access to information, promptly and at the lowest reasonable cost”.

Inconsistent Position of Department

Finally, I would point out to the Department that it has acted in a contradictory manner when compared to five other Commonwealth & State Agencies in refusing my request for Government Information.

My request for Government Information relating to ongoing access to Telecommunications Data' was also made to three other Commonwealth Agencies & two State Agencies.

In each of my other requests for Government Information, I asked the same identically worded questions seeking the same records held by those Commonwealth and State Agencies.

These requests were received, processed and the release of information under FOI or administrative access was successfully granted by the following agencies:

Australia Post;
The Clean Energy Regulator;
Civil Aviation Safety Authority;
Canterbury Bankstown City Council; and
Greyhound Racing Victoria.

The successful processing of identical requests by other 5 other agencies would suggest that my request satisfies the test in s15(2)(b) in that it did contain sufficient information concerning the documents "as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it".

However, despite five other agencies considering my request contained sufficient information to process and release information under the Act, only the Department of Agriculture and Water Resources has refused to grant my request.

Please do not hesitate to contact me further if you require any clarification of the points I have raised in seeking this internal review of my FOI request of 19 March 2017 (Ref: FOI 2016/17-59).

I look forward to hearing from the Department.

Yours faithfully,

Richard Smith

Dear Department of Agriculture and Water Resources,

I am seeking an update to my request for an internal review of 19 May 2017 of my FOI request (Ref: FOI 2016/17-59) 'Documents relating to Department's request for ongoing access to Telecommunications Data'.

I have not heard from the Department following my last correspondence of 19 May 2017, a period of some 19 days.

Yours sincerely,

Richard Smith

Dear Ms Nickols,

RE: FOI 2016/17-59

I have received the Department's response to my request for an Internal Review of the original decision of 20th April 2017 to refuse my request for Government Information under FOI.

I am pleased that the internal review resulted in a decision to vary the original refusal.

In view of the fact that the released information goes some way to answering my request, which in essence was "why the Department of Agriculture and Water Resources thinks that it requires access to the Telecommunications Data of Australians", I consider my request for Government Information closed.

Thank you for providing the information.

Yours sincerely,

Richard Smith