Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp
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
OFFICIAL
FOI/2021/092
Dear Trav S
Thank you for your email dated 11 June 2021, received by the Department of
the Prime Minister and Cabinet (the Department), in which you made a
request to the Department under the Freedom of Information Act 1982 (the
FOI Act) in the following terms:
Can we ask for a copy of all documents related to a file titled
"Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".
Timeframe for receiving your decision
We received your request on 11 June 2021 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 12 July 2021. The period of
30 days may be extended in certain circumstances. We will advise you if
there is any extension of time.
Charges
Agencies may decide that an applicant is liable to pay a charge in respect
of a request for access to documents. If the Department decides that you
are liable to pay a charge, we will send you a preliminary assessment of
the charge as soon as possible.
Publication of documents
Please note that information released under the FOI Act may later be
published online on our disclosure log at
[1]https://www.pmc.gov.au/government/depart...,
subject to certain exceptions. If you think you might wish to raise any
objections to the publication of any of the information which may be
released to you please contact us by email at [2][DPMC request email]. If you do
wish to object to the publication of information, you would need to
provide supporting reasons.
Exclusion of officers’ names and contact details
For documents that fall within scope of the request, it is the
Department’s policy to withhold:
· any person’s signature;
· the names and contact details of Australian Public Service
officers not in the Senior Executive Service (SES);
· the mobile or direct numbers of SES officers;
· the names and contact details of Ministerial staff at a level
below Chief of Staff.
The names and other details of SES officers will not be withheld unless
there is some reason for that information to be exempt from release. If
you require signatures, the names and contact details of non-SES officers
or Ministerial staff below the level of Chief of Staff, or the mobile or
direct numbers of SES officers please let us know at [3][DPMC request email] so
the decision-maker may consider; otherwise we will take it that you agree
to that information being excluded from the scope of your request (that
is, the information will be treated as irrelevant and redacted from any
documents for release).
We will write again when the Department has more information. Further
information on FOI processing can be found at the website of the Office of
the Australian Information Commissioner
[4]https://www.oaic.gov.au/freedom-of-infor....
Yours sincerely
FOI Adviser
FOI and Privacy Section| Legal Policy Branch
Government Division | Department of the Prime Minister and Cabinet
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6271 5849 |
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OFFICIAL
Dear Trav S
Please find attached the decision on your request to the Department of the
Prime Minister and Cabinet under the Freedom of Information Act 1982.
Yours sincerely
FOI Section | Legal Policy Branch
Government Division | Department of the Prime Minister and Cabinet
p. (02) 6271 5849
e. [1][DPMC request email] | w. [2]www.pmc.gov.au
One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600
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[7]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
References
Visible links
1. mailto:[DPMC request email]
2. http://www.pmc.gov.au/
3. https://twitter.com/pmc_gov_au
4. https://www.linkedin.com/company/departm...
5. https://twitter.com/indigenous_gov
6. https://www.facebook.com/indigenous.gov....
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
){kind=link}
OFFICIAL
Dear Trav S
Please find attached the internal review decision on your request under
the Freedom of Information Act 1982 to the Department of the Prime
Minister and Cabinet.
Yours sincerely
FOI Section | Legal Policy Branch
Government Division | Department of the Prime Minister and Cabinet
p. (02) 6271 5849
e. [1][DPMC request email] | w. [2]www.pmc.gov.au
One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600
[3]cid:image001.jpg@01D30607.6CF4DA00[4]cid:image002.jpg@01D30607.6CF4DA00[5]cid:image003.jpg@01D30607.6CF4DA00[6]cid:image004.jpg@01D30607.6CF4DA00
[7]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
References
Visible links
1. mailto:[DPMC request email]
2. http://www.pmc.gov.au/
3. https://twitter.com/pmc_gov_au
4. https://www.linkedin.com/company/departm...
5. https://twitter.com/indigenous_gov
6. https://www.facebook.com/indigenous.gov....
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