Internal Discussions related to "Right to Know"
Ben Fairless made this Freedom of Information request to Department of Home Affairs
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Department of Immigration and Border Protection,
Following on from my recent request at https://www.righttoknow.org.au/request/i..., I request, under the Freedom of Information Act, a copy of all documents that contain a reference to "Right to Know" or "OpenAustralia Foundation", their relevant acronyms ("RTK" and "OAF").
This request is subject to the following exclusions:
- FOI Applications from users of Right to Know, and the direct responses to those applications
- The names of anyone who is NOT a Public Servant
This request includes, but is not limited to, emails, policy statements and hand written notes.
Yours faithfully,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
I refer to your recent FOI request received 12 April 2014, seeking access
to:
I request, under the Freedom of Information Act, a copy of all documents
that contain a reference to "Right to Know" or "OpenAustralia Foundation",
their relevant acronyms ("RTK" and "OAF").
This request is subject to the following exclusions:
- FOI Applications from users of Right to Know, and the direct responses
to those applications
- The names of anyone who is NOT a Public Servant
This request includes, but is not limited to, emails, policy statements
and hand written notes
The purpose of this email is to seek clarification on the extent of your
request.
The FOI Guidelines, Part 3 – Processing requests for access, issued by the
Australian Information Commissioner, provide the following advice:
3.44 An applicant must provide information that is ‘reasonably necessary’
to enable the agency or minister to identify the document that is
requested (s 15(2)(b)). A request can be described quite broadly and must
be read fairly by an agency or minister, being mindful not to take a
narrow or pedantic approach to its construction.11
3.45 The request will extend to any document that might reasonably be
taken to be included within the description the applicant has used.
Currently your request may be interpreted quite broadly as you have not
identified which area(s) of the department your request relates to and
your request does not included a timeframe. Without clarification on
these issues the department may need to consider whether a practical
refusal reason exists in relation to your request.
I note that I have recently provided you with some advice on the
limitations of searching for items of email correspondence and TRIM record
holdings, this advice would also apply in relation to this request.
To assist the department in managing its FOI caseload please provide a
response to my email by close of business, Thursday 1 May 2014.
Yours Sincerely
Janelle
__________________________________
Janelle Raineri
FOI Inbox Manager
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Email: [1][email address]
Dear Janelle,
Thanks for your acknowledgement. Looking at the most recently available Organisation Chart (http://www.immi.gov.au/about/reports/ann...), I could be prepared to limit the scope of my request to:
- The Ministerial, Executive and External Accountability area
- The FOI and Privacy Policy section (if it doesn't fall under the first one).
- Legal and Assurance group
- Senior Executives within the Department (I note a list is provided here: http://www.immi.gov.au/about/department/...)
This would of course be subject to confirmation that a Practical Refusal Reason would not exist in relation to this request.
Let me know your thoughts.
Regards,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
Thank you for your email, please see my response to your enquiry.
The Ministerial, Executive and External Accountability area does include
the FOI Section, however there are six sections within this area. This
includes the section responsible for registering and coordinating every
day ministerial correspondence to the Minister’s / department; and the
section responsible for coordinating external engagement with the
Ombudsman / Australian Human Rights Commission. Please consider whether
you intended to capture all of these types of business areas or if you
would consider revising this to the FOI Section; and/or revise the types
of documents you intend to capture from this area, for example: Minster
briefs/submissions.
The Legal and Assurance group is again a large area of the department, are
you able to clarify what types of documents from this area you would
consider to be in scope of your request.
I note you have not indicated a timeframe for the search, this in
connection to the large number of business areas and Senior Executive
Officers may still require the department to consider a practical refusal
reason.
Are you able to provide some advice on the nature/topic of the documents
it is you are seeking access to in addition to your scope being for
documents that reference "Right to Know" or "OpenAustralia Foundation", as
this may assist the department in providing you with advice on the scope
of your request and what areas within the department may be relevant.
I hope this information is of assistance
Yours Sincerely
Janelle
__________________________________
Janelle Raineri
FOI Inbox Manager
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Email: [1][email address]
Dear Janelle,
Apologies for the delay in getting back to you.
Lets put a date limit in from 1 January 2012.
I'll revise the scope to:
- FOI and Privacy Policy Section
- Legal and Assurance group
- Senior Executives within the Department (I note a list is
provided here:
http://www.immi.gov.au/about/department/...)
The reason I've kept Legal and Assurance in there is because I'm keen to understand if your legal teams have had any involvement in RTK or OAF.
Does this help?
Yours sincerely,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
Thank you for your email, providing advice on the clarification for the
extent of your request. I have understood the scope of your request to
be:
I request, under the Freedom of Information Act, a copy of all documents
that contain a reference to "Right to Know" or "OpenAustralia Foundation",
their relevant acronyms ("RTK" and "OAF").
This request includes, but is not limited to, emails, policy statements
and hand written notes.
Lets put a date limit in from 1 January 2012.
I'll revise the scope to:
- FOI and Privacy Policy Section
- Legal and Assurance group
- Senior Executives within the Department (I note a list is provided here:
[1]http://www.immi.gov.au/about/department/...)
This request is subject to the following exclusions:
- FOI Applications from users of Right to Know, and the direct responses
to those applications
- The names of anyone who is NOT a Public Servant
If this is not accurate please notify me as soon as possible.
Request for s.15AA extension of Time
The current due date for your request is Monday 12 May 2014. Due to the
number of requests currently being processed by our office, we will not be
able to finalise your request by the original due date.
The Department seeks your agreement (under s.15AA of the FOI Act) to
extend the timeframe for the processing of your request by 30 days. This
would extend the due date for your request to Wednesday 11 June 2014.
It would assist the Department in managing its FOI caseload if you could
provide a response to this request by close of business, Thursday 8 May
2014.
Update on the status of your request
Following the consultation of the scope of your request the FOI Section
will engage with relevant business areas to identify relevant documents.
The search and retrieval process is ongoing.
Please do not hesitate to contact me should you wish to discuss.
Yours sincerely
Janelle
__________________________________
Janelle Raineri
FOI Inbox Manager
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Email: [email address]
Dear Janelle,
I'm happy to provide a 7 day extension, please feel free to ask for another if this isn't sufficient.
Can you advise if a Practical Refusal Reason exists for this request or have I sufficiently limited it?
Thanks,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
The department is still within the search and retrieval process for this
FOI request. Although you have clarified of the scope of your request the
number of officers and business areas that are required to undertake a
search and retrieval is significant. I would ask you to consider agreeing
to further time to assist the department in the processing of your FOI
request, can we agree on a 14 day extension.
In relation to your enquiry about a practical refusal reason, I have
consider the clarification of the scope and I am satisfied that it has
identified a timeframe and specific officers / business areas within the
department. Therefore I consider that a search and retrieval is
reasonable. However until the FOI Section receives advice from all the
officers and relevant business areas as to the number of documents
identified, I am unsure if a practical refusal reason may need to be
considered by an authorised FOI decision maker.
The FOI Section will keep you updated on the progress of your request and
following the identification of documents the request will be assigned to
an authorised FOI decision maker.
Yours Sincerely
Janelle
__________________________________
Janelle Raineri
FOI Inbox Manager
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Email: [1][email address]
Dear Janelle,
14 days is fine. I reserve the right to refine my scope should it be required depending on the charges notification (your email seems to imply it will be rather large).
Yours sincerely,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
Thank you for agreeing to a 14 day extension of time.
The new due date for this request is Monday 26 May 2014.
Please note it was not my intention to make any impression on you as to
the potential size of your request. I am not making any assumptions as to
the results of the search, it could be large, or it could be small.
However It may be misleading if I was to conclude that there would be no
need for the department to consider whether a practical refusal reason
existed or not when I do not know the number of potential documents that
may fall within the scope, there are after all a considerable number of
officers and business areas required to undertake a search.
You may refine the scope of your request at any stage of the FOI process.
Yours Sincerely
Janelle
__________________________________
Janelle Raineri
FOI Inbox Manager
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Email: [1][email address]
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
Re: Your Freedom of Information request
I am writing to inform you that I have been appointed as the authorised
decision maker for your FOI request, seeking access to:
I request, under the Freedom of Information Act, a copy of all documents
that contain a reference to "Right to Know" or "OpenAustralia Foundation",
their relevant acronyms ("RTK" and "OAF").
This request includes, but is not limited to, emails, policy statements
and hand written notes.
Lets put a date limit in from 1 January 2012.
I'll revise the scope to:
- FOI and Privacy Policy Section
- Legal and Assurance group
- Senior Executives within the Department (I note a list is provided here:
<http://www.immi.gov.au/about/department/...>)
This request is subject to the following exclusions:
- FOI Applications from users of Right to Know, and the direct responses
to those applications
- The names of anyone who is NOT a Public Servant
As part of the department’s FOI service standard, I will update you every
14 days regarding the progress of your request, however please do not
hesitate to contact me if you have any questions or wish to discuss the
request in the interim.
Regards
Steven Hocking
Assistant Director
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [1][email address]
UNCLASSIFIED
References
Visible links
1. mailto:[email address]
Dear Mr. Hocking,
Thank you for your email.
In anticipation that you will request an extension of time via the OAIC, I write to advise that I have asked the OAIC allow me to make a submission prior to granting any extension request under s. 15AB, on the basis that the information provided by you to the OAIC in a recent request of mine is inconsistent with the charges notice issued by the Department.
I would appreciate you discussing any further extension requests with me in the first instance instead of misleading either the OAIC or me.
Yours sincerely,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Ben Fairless
I am writing in regards to your FOI request seeking:
I request, under the Freedom of Information Act, a copy of all documents
that contain a reference to "Right to Know" or "OpenAustralia Foundation",
their relevant acronyms ("RTK" and "OAF").
This request includes, but is not limited to, emails, policy statements
and hand written notes.
Lets put a date limit in from 1 January 2012.
I'll revise the scope to:
- FOI and Privacy Policy Section
- Legal and Assurance group
- Senior Executives within the Department (I note a list is provided here:
<[1]http://www.immi.gov.au/about/department/...>)
This request is subject to the following exclusions:
- FOI Applications from users of Right to Know, and the direct responses
to those applications
- The names of anyone who is NOT a Public Servant
This email is to advise you of my decision that you are liable to pay a
charge in respect of the processing of your FOI request in accordance with
s 29 of the FOI Act.
Please see the attached letter for further information.
How to pay:
Include your FA Reference number and advise whether you wish to pay the
deposit or the full amount.
The deposit or full payment can be paid by cheque, money order, credit
card or Electronic Funds Transfer (EFT).
Cheques and money orders should be made payable to "Collector of Public
Monies" and sent to:
FOI & Privacy Policy Section
Department of Immigration and Border Protection
PO Box 25
BELCONNEN ACT 2616
AUSTRALIA
Should you choose to pay by credit card, please complete the attached
credit card authorisation form (CCAF form), including your signature and
forward to FOI & Privacy Policy Section at the above address, or email to
[2][email address].
Should you choose to pay by EFT the department’s bank account details are
as follows:
• Bank: CBA
• BSB: 062987
• Account Number: 10016044
• Account Name: DIBP Official Administered
Direct Credit Receipts Account.
When making the transfer you will need to quote the number of your request
- FA 14/04/00806 - so that your payment can be identified by our Finance
area. Failure to do so may result in payments not being identified as FOI
related and could result in processing delays.
Please advise FOI when you have made the payment made by direct credit so
that we can contact the Finance area and they can issue a receipt. You
should also be aware that payments by direct credit are not processed in
real time. There is at least a one day delay between somebody paying money
into the department's account and notification of the payment via our bank
account statement.
Regards
Steven Hocking
Assistant Director
FOI & Privacy Policy Section
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [3][email address]
UNCLASSIFIED
References
Visible links
1. http://www.immi.gov.au/about/department/...
2. mailto:[email address]
3. mailto:[email address]
Dear Mr Hocking,
I assume you are joking when you tell me that it took the Department 30.65 hours (nearly 4 full days) to find 17 pages which relate to this request?
Assuming you are not, I contend that the charges have been wrongly assessed, and that payment of the charge would cause me undue financial hardship.
// Charges have been wrongly assessed \\
I contend that the charges have been wrongly assessed. You have indicated that it took 30.25 hours for employees of the Department to find 17 pages of records. This is over 3 full working days at 8
hours.
I completed a search on my Email System (Microsoft Outlook using MS Exchange, which I believe is the same as yours) and I was able to complete a search in less then 5 minutes. If I was to double this time frame to 10 minutes to be generous, it would be equal to over
180 staff searching for documents all at once.
As you have failed to demonstrate how you came to this value, and it is manifestly higher then average, I contend that the charges have been overstated or miscalculated.
// Payment of the charge would cause undue financial hardship \\
As a citizen, I believe that holding the Government and its employees to account, and improving transparency of the Government and its functions is critical to our democracy. This is why FOI exists.
I make FOI requests via Right to Know so that the public may be informed on what the Government is doing. This request is designed to allow others to see how the Department responds to people such as me who seek to make the government more transparent.
I make FOI requests and engage in public debate in my personal time, and I receive no compensation for the requests I make. Therefore, the costs of processing any requests must come from my own pocket.
To provide $459.75 of my personal income so a single FOI request would mean that I have to consider negating payments for Rent, Food, Utilities and other unexpected things which come up.
Based on the above, I advise that the processing charges for this request would cause undue financial hardship.
\\ Summary //
It is for the above reasons that I contend that the charges have been wrongly assessed, and that the charge be reduced or not imposed. I respectfully request the Department review the charges to ensure that they are assessed correctly and do not unduly attempt to financially ruin FOI applicants.
This is not a request for Internal Review. I reserve the right to make a request for Internal or OAIC review in the future.
Yours sincerely,
Ben Fairless
Ben Fairless left an annotation ()
Hi Alex,
Would it be possible to argue that the fact the Department doesn't have centralised record management is another reason I could contend the charges were wrongly assessed?
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
Thank you for your email.
I consider your email to be a contention of charges. You still retain your right to request an internal review of charges or to seek a review by the Information Commissioner. I am required to provide a response to your contention of the charge within 30 days of receipt of your email. This would make the due date for my response Sunday 22 May 2014. However, as this falls on a non-working day, s.36(2) of the Acts Interpretation Act 1901 provides that the latest date I may respond is the next working day, which is Monday 23 May 2014. Of course, I will endeavour to response before this date.
Your email stated that you believe the charges have been wrongly assessed and that payment of the charge would cause financial hardship.
I have attached a fact sheet from the Office of the Australian Information Commissioner regarding the charges process and claiming financial hardship. In order for me to consider financial hardship you must demonstrate how the imposition of a charge would cause financial hardship. The attached fact sheet provides examples whereby an applicant may attached a copy of a pension or welfare card.
At this stage, since you have provided no evidence that the charge would cause you financial hardship, I am only required to consider that the charge has been wrongly assessed. You are welcome to submit evidence supporting your financial hardship.
Regards
Steven Hocking
Assistant Director
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [email address]
UNCLASSIFIED
Our references: FA 14/04/00806; ADF2014/13362
Dear Mr Fairless
Please see the attached decision letter pertaining to your contention of charges for FA 14/04/00806. This letter outlines my decision and the next steps in processing your request.
As per our previous discussion and my email below, you still retain your review rights under the FOI Act.
Regards
Steven Hocking
Assistant Director
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [email address]
Dear Steven,
Please can you provide a copy of your decision letter in an alternative format (such as Microsoft Word, or Plain Text).
Government Guidelines[1] make it clear PDF documents cannot be ‘relied upon’ in the provision of government information.
Yours sincerely,
Ben Fairless
Dear Department of Immigration and Border Protection,
Please pass this on to the person who conducts Freedom of Information reviews. I am writing to request an internal review of Department of Immigration and Border Protection's handling of my FOI request 'Internal Discussions related to "Right to Know"'.
The Decision Maker has failed to take into account the FOI Guidelines when considering this request.
Charging Inconsistent with the FOI Guidelines
------------------------------------------------
I contend that method used to calculate the charges is inconsistent with the FOI Guidelines (and therefore the FOI Act). The Decision Maker has erred in not considering the FOI Guidelines and the FOI Act.
FOI Guidelines
-----------------
I draw the department's attention to the relevant FOI Guidelines which are referenced in my Internal Review:
3.55 of the FOI Guidelines [1] state (in part):
"Agencies are responsible for managing and storing their records in a way that facilitates finding them for the purposes of an FOI request."
3.56 of the FOI Guidelines state (in part):
"The Information Commissioner considers that, as a minimum, an agency should conduct a search by using existing technology and infrastructure to conduct an electronic search of documents, as well as making enquiries of those who may be able to help locate the documents."
4.32 of the FOI Guidelines [2] state (in part):
“An underlying assumption in calculating search and retrieval time is that the agency or minister maintains a high quality record system.... In summary, ***applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers. *** "
" Time wasted by an officer in searching for a document that is not where it ought to be, or that is not listed in the official filing system, cannot be charged to an applicant. For this purpose, the ‘filing system' of an agency or minister should be taken as including central registries as well as other authorised systems used to record the location of documents."
4.33 of the FOI Guidelines state:
"Search and retrieval time does not include time spent by agency officers, other than the decision maker, discussing and reviewing the results of search and retrieval activities."
Is the Department compliant with 3.55 and 3.56 of the FOI Guidelines?
------------------------------------------------------------------------
The Department is required to manage and store their records in a way that facilitates finding them for the purposes of an FOI request. The Department has advised that the current email system in place is Microsoft Exchange (This can be verified from hidden, technical information sent with every email from the Department).
There are facilities available to the Department to allow an authorised person access search over multiple mailboxes [3]. Once such description of this feature is:
“The Exchange Team brought a lot of good stuff with the Exchange Server 2010 release especially in areas of compliance and archiving..... [The] Multi-Mailbox Search feature.... allows an administrator or even a regular user to perform search on mailboxes of any given organization."
It is my contention that, if the Department is compliant with 3.55 in having this feature available, it would be non-compliant with 3.56 not using the feature. If this feature (a standard feature of Microsoft Exchange) was not enabled, then the department could be said to be non-compliant with 3.55 and 3.56.
Should an applicant be charged for mass searches?
---------------------------------------------------
The Decision Maker has stated in their notice that "Search and Retrieval of documents must take into account the number of staff required to search for documents" and that "the search for documents and assessment of whether documents are in scope takes a large amount of time".
As has been documented above, the Department should have tools at its disposal to perform searches of email systems, archives and TRIM by a single person. There should be no requirement to contact every member of staff in the area that was requested as the department claims was done in this case.
The Department cannot also seek to impose charges when time has been wasted searching for a document that is not in the official filing system (4.32 of the FOI Guidelines). It is my contention that requiring every member of staff to search their email clients would be considered "wasteful" as there are other, cheaper ways in which a search can be conducted (refer above).
It is also clear from 4.33 of the FOI Guidelines that no-one other than the decision maker can charge for discussion or review of the results of a search. If the staff returned a "nil" result (as is indicated in the decision letter) it would be clear that there are also charges for the review of the results of a search (even if they are "nil" results).
In this case, it appears that the Department has used a method of search not by using existing technology and infrastructure, but by conducting a manual search of records by all staff. This is inconsistent with the FOI Guidelines and the FOI Act.
Summary
----------
It is on the above basis, and my original contentions, that I argue that the search and retrieval charges should be waived in full.
The Department has indicated that it considers there is a public interest in the release of the documents. It is the Department's fault that it doesn't have the capabilities to search across multiple mailboxes, when this feature is available standard in the Department's own mail solution.
It should not be up to applicants to pay for the Department's IT and Infrastructure shortcomings with respect to FOI (according to the FOI Guidelines).
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/i...
Yours faithfully,
Ben Fairless
[1] http://www.oaic.gov.au/freedom-of-inform...
Ben Fairless left an annotation ()
Thanks to Alex for the annotation at https://www.righttoknow.org.au/request/i..., as it helped me form my request for Internal Review.
UNCLASSIFIED
Dear Mr Fairless,
My sincere apologies for the inconvenience. I have provided the document in Microsoft Word format for you. Please let me know if this does not meet your requirements. I would be more than happy to mail you a copy of the letter if you wish to rely upon a hard copy instead.
Please note the timeframe in which to respond and the review rights available to you under the FOI Act.
Please contact me if you wish to discuss.
Regards
Steven Hocking
Assistant Director
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [email address]
Dear Steven,
Thanks for providing a copy of the file in Microsoft Word format.
Whilst not directly related to my request, would it be possible for all letters issued by the department be issued in DOCX format going forward? I understand this would be consistent with Government Guidelines on access to information.
My request for Internal Review has been sent to the Department, and a copy can be found online at https://www.righttoknow.org.au/request/i....
Yours sincerely,
Ben Fairless
UNCLASSIFIED
Good morning Mr Fairless,
Thank you for your email. Regarding your request for all future documents to be released in DOCX format, the department does not intend to change its processes at this time. The decision letters will be provided in PDF form and will be signed by the decision maker. I note that this is common practice across government agencies.
The guidelines on access to information relate to the publication of documents on department websites. If you have difficulty in accessing the documents in PDF format please let me know, although I note that this format has been provided to you numerous times in the past without complaint.
Regards
Steven Hocking
Assistant Director
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [email address]
Dear Steven,
Thanks for your email Regarding PDF documents. I won't get into an arguement with you, however I note that access to documents in a specific format is a valid request an applicant can make under s20(2) of the FOI Act.
Please can you acknowledge receipt of my request for Internal Review.
Yours sincerely,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/04/00806-R1; ADF2014/13362
Mr Ben Fairless
By email: [FOI #588 email]
Dear Mr Fairless
Re: Your request for internal review of a decision under the Freedom of
Information Act 1982
I am writing to advise you that I have been appointed as the authorised
decision maker on your request for internal review of the charges decision
notified to you by Mr Steven Hocking on Monday 16 June 2014 (FA
14/04/00806).
Mr Hocking’s decision was in response to your request, submitted to the
Department on Saturday 12 April 2014, under s.15 of the Freedom of
Information Act 1982 (the Act) for:
‘I request, under the Freedom of Information Act, a copy of all documents
that contain a reference to "Right to Know" or "OpenAustralia Foundation",
their relevant acronyms ("RTK" and "OAF").
This request includes, but is not limited to, emails, policy statements
and hand written notes.
Lets put a date limit in from 1 January 2012.
I'll revise the scope to:
- FOI and Privacy Policy Section
- Legal and Assurance group
- Senior Executives within the Department (I note a list is provided here:
<[1]http://www.immi.gov.au/about/department/...>)
This request is subject to the following exclusions:
- FOI Applications from users of Right to Know, and the direct responses
to those applications
- The names of anyone who is NOT a Public Servant.’
The initial due date for the request was Monday 12 May 2014. On Tuesday 6
May 2014, the Department asked you to agree to an extension of time (30
days) under s.15AA of the Act. You agreed to an extension of 14 days,
taking the new (nominal) due date to Monday 26 May 2014.
On Friday 23 May 2014, Mr Hocking advised you that you were liable to pay
a charge of $459.75. Mr Hocking advised you that you were entitled to
provide him with written contentions, within 30 days of receiving the
notice, as to why the charge should be reduced or waived. The notice
advised that, under the Act, the time for processing the request is
‘suspended’ while the charge process is undertaken.
On the same day, 23 May, you provided Mr Hocking with your written
contentions. Your first contention was that the charge had been wrongly
assessed. Your second contention was that paying the charge would cause
you financial hardship. You did not provide any evidence to support the
second contention.
On Monday 16 June 2014, Mr Hocking advised you that he did not intend to
reduce or waive the charge and advised that your next steps were to (1)
seek a review of the decision (internal review to the Department or
external to the Office of the Australian Information Commissioner) or (2)
to agree to pay the charges by paying the deposit of $114.94.
On Thursday 19 June 2014, you submitted a request to the Department for an
internal review of this decision.
I will now consider the elements of your internal review request.
Validity elements for an internal review request
The decision by Mr Hocking to impose a charge under s.29 of the Act meets
the definition of an ‘access refusal’ decision in s.53A(e) of the Act.
Further, s.54 of the Act provides that an applicant may apply to the
agency for internal review of an access refusal decision providing the
decision was not made by the ‘principal officer of the agency’ (ie the
Secretary of the Department).
The decision was made by an authorised decision maker, Mr Hocking, and was
notified to you on Monday 16 June 2014. Finally, your email request for
internal review was received by the Department on Thursday 19 June 2014,
which was within the 30 days as required.
Therefore, I am satisfied that your request meets the validity
requirements for seeking internal review of the access refusal decision.
Terms of your review request
You provided detailed contentions to support a claim that the ‘search and
retrieval’ component of the charge should be waived in full, on the
grounds that the Department had calculated the charge incorrectly.
Things to note about the internal review
Section 54C(3) of the Act provides that I must make a ‘fresh decision’
regarding your contentions rather than conduct a review of the merits of
the original decision.
The Act requires that I finalise the internal review decision within 30
days of the date that the agency received the request, which was Monday 2
June 2014. Therefore I must provide you with the decision by Saturday 19
July 2014. However, as this date falls on a Saturday, s.36(2) of the Acts
Interpretation Act 1901 (Cth) allows me to provide the decision to you, at
the latest, on the next working day, which is Monday 21 July 2014.
Please feel free to contact me in the interim if you have any further
questions about the process.
Yours sincerely
Angela O’Neil
Authorised decision maker
FOI & Privacy Policy Section
Ministerial, Executive & External Accountability Branch
Department of Immigration and Border Protection
Email: [2][email address]
UNCLASSIFIED
References
Visible links
1. http://www.immi.gov.au/about/department/...
2. mailto:[email address]
UNCLASSIFIED
Good afternoon Mr Fairless,
Your request for Internal Review regarding the charges notice issued in response to FA 14/04/00806 has been allocated to an FOI decision maker.
Regarding your request for documents in DOCX format, I note that the guidelines do not state that decision letters or notices must be provided in a specific format. Rather, the guidelines state that the documents requested under the FOI Act be made available in an alternative format if requested. The department's position on this matter remains unchanged.
Regards
Steven Hocking
Assistant Director
Department of Immigration and Border Protection
Telephone: (02) 6264 1007
Email: [email address]
Dear Angela,
Thank you for your email.
I remind you of your obligations[1] to consider my contentions raised as part of the Internal Review. I note in the past you have failed[2] to do this.
Yours sincerely,
Ben Fairless
[1] 9.33 of the FOI Guidelines (http://www.oaic.gov.au/freedom-of-inform...) - "The internal review officer must consider all issues raised by the person applying for internal review."
UNCLASSIFIED
Our references: FA 14/04/00806-R1; ADF2014/13362
Mr Ben Fairless
By email: [1][FOI #588 email]
Dear Mr Fairless
Thank you for your email. If you disagree with any aspect of my internal
review decision, you have the right to seek external review by the Office
of the Australian Information Commissioner.
Yours sincerely
Angela O’Neil
Authorised decision maker
FOI & Privacy Policy Section
Ministerial, Executive & External Accountability Branch
Department of Immigration and Border Protection
Email: [email address]
Dear Angela,
I note that 9.25 of the FOI Guidelines[1] state:
"If possible, it is preferable that a more senior officer who was not involved in the earlier decision be appointed to conduct the internal review."
I note the original decision maker was an Assistant Director. Can you please confirm if you are a more senior officer?
Yours sincerely,
Ben Fairless
UNCLASSIFIED
Dear Mr Fairless
I note that Ms O'Neil has corresponded with you today advising that she will make a decision on your request by no later than Monday 21 July 2014.
There will be no further correspondence with you on this matter until Ms O'Neil sends you her decision.
Yours sincerely
Linda Rossiter
Director FOI and Privacy Policy
Parliamentary and Executive Branch I Immigration and Border Protection Portfolio
Ben Fairless left an annotation ()
I've complained to the OAIC and asked them to make a review, as it seems to me that Ms. Rossiter is simply pulling the strings of junior department employees to make decisions on her behalf.
Ben Fairless left an annotation ()
In a nutshell, the charge amount was upheld and I withdrew the application.
Mark R. Diamond left an annotation ()
Ben, I don't know whether you are interested in reviving the application but if you are, then I would be willing pay the charge. If you wish, we can discuss via email how that might be done. The easiest way would probably be if I were to know the details of how the charge is to be paid and pay directly to the Department.
Vera Lystich left an annotation ()
Alternatively, Ben, if you wish to crowdfund the charge, I would be willing to contribute a small amount.
Ben Fairless left an annotation ()
Thanks for the offer of support, at the moment I wouldn't want to pursue the matter any further.
That said, just because my request was refused doesn't prevent others from making a similar request should they wish to do so.
Cheers,
Ben
Alex Sadleir left an annotation ()
"3.55 Agencies are responsible for managing and storing their records in a way that facilitates finding them for the purposes of an FOI request. "
"4.32 An underlying assumption in calculating search and retrieval time is that the agency or minister maintains a high quality record system. [...] In summary, applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers. Time wasted by an officer in searching for a document that is not where it ought to be, or that is not listed in the official filing system, cannot be charged to an applicant. [...]
4.33 Search and retrieval time ***does not include time spent by agency officers, other than the decision maker***, discussing and reviewing the results of search and retrieval activities."
http://www.oaic.gov.au/freedom-of-inform...