References: FA 15/06/01233; ADF2015/26494

Dear Jess Portas-Hills

I refer to your request to access documents, received 9 June 2015, for:

I wish to request the Child Protection Policy contracts signed by workers
on Nauru who's jobs involved contact with children prior to May 2014
before the Child Protection Policy was created by Save the Children.

This email is to advise that the Department has not accepted the request
as valid under the Freedom of Information Act 1982 (FOI Act). This is
because your request is seeking access to documents that are not held by
this ‘agency’. I will outline below the relevant requirements for a valid
FOI request.

Relevant provisions for a valid FOI request

Section 15(1) of the FOI Act allows a person to request that a
Commonwealth agency provide them with access to ‘a document of an agency’.
I note s.4(1) of the FOI Act defines ‘a document of an agency’ to include
a document that falls within s.6C of the FOI Act (Commonwealth contracts).

For a request to be valid under the FOI Act, it must, amongst other
things, be for a document that falls within the definition of ‘a document
of an agency’.

The documents you have requested access to relate to the conditions of
employment for individuals hired by third party organisations.

Advice from business area

In considering your request I have consulted the business area within the
Department who deals with service contracts for Nauru. They have advised
that the Department does not hold records for the service provider
employees. Rather, this is the responsibility of the contracted service
provider.

They further advised that it is a requirement for the service providers to
ensure staff have undertaken required checks under relevant legislation.
However, this information is kept and maintained by the service provider,
it is not subject to be provided to the Department under the contract.

Considering the advice from the business area I am satisfied that these
types of documents do not relate to the parameters; or the performance
requirements of the contract between the Department and the organisations.

I am satisfied that the documents you have requested do not fall within
s.6C(2)(b) of the FOI Act. Further, I am satisfied there is no obligation
under the FOI Act for the Department to request these types of documents
from service providers.

I am satisfied that you have not requested access to documents of the
Department; and as a result the request is not a valid request under
s.15(1) of the FOI Act. Please note that I have closed your request as
invalid.

Access to published documents

The Department has made available on its disclosure log documents that may
be relevant to your request, including contracts between service
providers. You may wish to review the documents available on the
Disclosure log. If there are documents you wish to access, and a link to
the document is not available, please email the disclosure date and
description to [1][email address], to request a copy.

See: [2]http://www.immi.gov.au/About/foi/Pages/f...

Yours sincerely

Janelle Raineri

FOI Contact Officer I FOI Helpdesk

Freedom of Information Section

Immigration and Border Protection Portfolio

T: 02 6264 1580 

E:  [email address]

Please note I am out of the office from 2:30 PM

show quoted sections

Dear Jess Portas-Hills

In relation to your enquiry, to access the documents, you would need to go directly to the record holders, i.e. the service providers. However, outside the parameters of the contract I do not believe that they would be subject to either the Commonwealth FOI Act; or State FOI Acts. Off course you should check the respective legislation to confirm this. The relevant sections of the Commonwealth FOI Act are s.11 and s.4.

I should note that the documents you have identified are likely to be considered the personal information of the employees; and it is unlikely that a service provider would give administrative access to this type of information.

As per my email below the contract documents are publicly accessible on the Departments disclosure log. I have reviewed the 2015 requests and identified that an entry that may be relevant to your request is missing (the Department has had some difficulties with the uploading of new requests and we continue to resolve this matter). The relevant document is a copy of the contract with Save the Children. If you are interested in accessing this document please let me know and I can provide access outside the FOI Act.

If you would like to access additional documents listed on the Department's disclosure log please let me know and I can provide a copy.

Yours sincerely

Janelle Raineri
FOI Contact Officer I FOI Helpdesk
Freedom of Information Section
Immigration and Border Protection Portfolio
T: 02 6264 1580 
E:  [email address]

Please note I am out of the office from 2:30 PM

show quoted sections

Dear Jess Portas-Hills

Please find attached the document subject to the Disclosure log and relevant to your request.

Yours sincerely

Janelle Raineri
FOI Contact Officer I FOI Helpdesk
Freedom of Information Section
Immigration and Border Protection Portfolio
T: 02 6264 1580 
E:  [email address]

Please note I am out of the office from 2:30 PM

show quoted sections