Dear PM&C,

Can we ask for a copy of all documents related to a file titled "Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".

Yours faithfully,

Trav S

Please review Mr Rush's decision that:

“I am satisfied that all reasonable steps have been taken to find documents relevant to the FOI request, and that no documents relevant to the FOI request exist in the Department”.

Mr Rush's claim conflicts with his own Department's claim to hold Legal Professional Privilege (LPP) over 29 documents the Attorney Generals Department holds related to the "Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".

We contend it is unreasonable to claim LPP on documents that don't exist. It is unreasonable to claim documents don't exist when there is a LPP claim made on them.

I bring your attention to:

22 Feb 2012, the public record shows Mr Rush in email correspondence with AusAID and other PMC stakeholders. The email subject title is "“HOSM for CRG Contractors in Iraq [SEC=UNCLASSIFIED]". These documents are relevant to our FOI request, there were around 10 emails.

19 Mar 2012, the public record shows Mr Rush received an email with his Department proposing draft text for AusAID’s consideration that his Department proposed to brief PSPM Senator Jan McLucas with soon. The draft “Amendment of HOSM (Iraq) declaration 2004 to extend to specified commercial contractors” is relevant to our FOI request.

5 Dec 2012, the public record shows Mr Rush decided “The Minister for Foreign Affairs would need to write to the PM supporting the case for a new declaration to apply”. Relevantly, earlier in 2012 Mr Rush failed to give PSPM Senator the Hon Jan McLucas the proposed amendment without reasonable excuse.

26 June 2013, the public record shows the Minister for Foreign Affairs, Senator the Hon Bob Carr, provided the letter Mr Rush requested.

26 Nov 2019, the public record shows Mr Rush was to be informed of OPC’s decision to refuse access to a public FOI request seeking access to an amendment to the HOSM Declaration in 2012.

23 April 2021, the public record shows PMC emailed the Attorney General’s Department. The AGs holds 29 documents relating to the HOSM Amendment Regulation: Iraq clasp. They largely comprise communications between PMC and Office of Legislative Drafting and Publications. Their dominant purpose being the provision of legislative drafting instructions, legal advice and draft legislation. AGs confirms the documents regard our case.

The FOI Guidelines state:

“It is not enough for an agency to simply assert that the document cannot be found or does not exist before taking any demonstrable steps to try and find the requested document.”

Mr Rush has not satisfied the two elements that must be established before refusing a request via section 24A. It is unreasonable they claim PMC holds no documents relevant to our FOI request. He has knowledge of documents directly relevant to the request but has not taken reasonable steps to find them.

Mr Rush's claim that PMC holds no documents relevant to our FOI request is untrue. It conflicts with the AGs claim of holding 29 documents relating to the "Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".

Thank you for your time.

Trav S

Please accept the following clarification:

1. The Attorney Generals Department created file number 12/5946 - Humanitarian Overseas Service Medal Regulation: Iraq clasp. This is evidenced in Senate Order Final List - Jan to Jun 2012

2. The Office of Parliamentary Counsel holds file number 12/5946 related to the Humanitarian Overseas Service Medal Regulation: Iraq clasp. There are 29 relevant documents in this file. This is evidenced by OPC FOI request no. 7-2021

Please also take the following information into consideration:

3. Mr Rush waived legal professional privilege over documents prepared for Parliamentary Secretary to the Prime Minister Senator the Hon. Jan McLucas. This is evidenced by PMC FOI request 2020/267. Mr Rush states "The Department is not required to seek legal advice in the course of drafting briefs. The responsible line area has confirmed that no such legal advice as described in the terms of your request was sought."

4. Legal professional privilege cannot reasonably be applied to documents that already exist in the public space. Mr Rush acknowledges AusAID disclosed documents to me. We ask PMC release documents titled "HOSM for CRG Contractors in Iraq [SEC=UNCLASSIFIED]" and "Humanitarian Overseas Service Medal (Iraq) Declaration [SEC=UNCLASSIFIED]".

5. Within these documents are drafts of the "proposed declaration under the new HOSM Regulations 2011, which would repeal the current Iraq declaration made under the repealed regulations." Mr Rush implies these documents do not exist while at the same time he acknowledges AusAID disclosed copies to us.

Yours sincerely,

Trav S

Dear FOI,
Thank you for your email.
The FOI Act provides wide scope for your department to engage in consultations if they chose. The request sought "a copy of all documents related to a file titled Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp". We sought documents "related to" a file. We did not state or imply that file belonged to your department.
Mr Rush claims expertise on these matters. It appears unreasonable for him to claim your department holds no documents related to the file. Many documents show he was your department's primary decision-maker on this issue for many years. Your department has received many requests regarding these matters. We are concerned about the apparent recalcitrance towards FOI requests seeking information with which to scrutinise Mr Rush's decision-making in 2012.
With regards to your suggestion to re-apply with a new FOI request. That course of actions appears to be an unnecessary waste of public resources and your department's time.
Thank you for your time.
Yours sincerely,
Trav S