UNCLASSIFIED

 

Our Ref: 1604-F1455

 

Dear Mr Gothe-Snape

 

Re: Freedom of Information (FOI) Request

 

Thank you for your email dated 28 April 2016 in which you seek access
under the Freedom of Information Act 1982 to:

 

“…documents in relation to potential or actual legal action by NuCoal in
response to the seizing by the NSW Government of its Doyles Creek mining
exploration licenses”

 

Searches are now being undertaken in relevant areas of the Department for
documents relevant to your request.  I will contact you again once the
searches have been completed.

 

Timeframe for receiving your decision:

We received your request on 28 April 2016 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 30 May 2016 (noting that 29
May is a Sunday).  The period of 30 days may be extended in certain
circumstances.  We will advise you if there is any extension of time.

 

Scope of request:

If it emerges that the scope of your request is unclear or is too large
for processing, the Department will contact you to discuss re-scoping the
request.

 

Exclusion of officials’ names and contact details:

It is the Department’s policy to withhold the mobile numbers of all
government officials, and the names and contact details of government
officials not in the Senior Executive Service (SES).  If you require the
mobile numbers of all government officials, or the names and contact
details of non-SES officials, please let us know at [DFAT 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.

 

Charges:

Please note that the Department issues charges for processing FOI
requests.  We will advise you of these charges when we are in a position
to estimate the resources required to process your request.

 

Timing of release:

As the subject matter of your request will require DFAT to upload any
documents released to you to the Department’s FOI Disclosure Log, I take
this opportunity to advise you that the Department’s policy is to upload
documents to the disclosure log on the same day as the documents are
released to you. 

 

Personal Information:

Your personal information has been collected by the Department as a result
of your correspondence, and will be used in order to process your FOI
request.  Your personal information is protected by law, including the
Privacy Act 1988.  The Department’s privacy policy is available at
dfat.gov.au/privacy.html and contains information about access to or
correction of your personal information, and how you may complain about a
breach of your privacy.

Please note that if we need to consult with other people regarding release
of the documents you have requested, we may need to disclose your personal
information. When we consult with other people about a request you have
made, it may be apparent to those people that you have made a request,
even if we do not disclose your identity. If you have concerns about the
Department consulting with other people about your request, please let us
know your concerns.

 

Should you require any further information, please do not hesitate to
contact The Freedom of Information Section on (02) 6261 1111, or by return
email.

 

Please note a copy of this email has been sent to Marie-Charlotte McKenna,
Director, Freedom of Information and Privacy Law Section, for her
information.

 

Yours sincerely

 

 

Kelly Matheson

_________________________________
Legal Officer | FOI and Privacy Section
Corporate Legal Branch | Legal Division

Department of Foreign Affairs and Trade

show quoted sections

UNCLASSIFIED

 

FOI Ref: 1604-F1455

File No: 16/13237

Date: 23 May 2016

 

 

Dear Mr Gothe-Snape

 

Re: Freedom of Information (FOI) Request

 

Thank you for your e-mail of 28 April 2016, seeking access under the
Freedom of Information Act 1982 (the FOI Act) to:

“…documents in relation to potential or actual legal action by NuCoal in
response to the seizing by the NSW Government of its Doyles Creek mining
exploration licenses.”

 

Practical refusal reason

Notice is hereby given under section 24AB(2) of the FOI Act of an
intention to refuse to grant access to the documents sought.  The
practical refusal reason is that the work involved in processing the
request would substantially and unreasonably divert the resources of DFAT
from its other operations.

 

In deciding that this practical refusal reason exists, I have given
consideration to how DFAT could proceed to process your request, and the
time and resources that would be involved in doing so. On advice from the
relevant line areas, your request as it currently stands has captured over
1000 pages.  I am therefore of the opinion that processing your request in
its current form would be a substantial and unreasonable diversion of
DFAT’s resources within the meaning of section 24AA(1). 

 

Consultation process

 

In accordance with section 24AB(2)(e), the consultation period during
which you may consult with me to revise the scope of your request is 14
days after the day you are given this notice. Please note that if you do
not take this opportunity to consult, in accordance with section
24AB(7)(a), your request will be taken to have been withdrawn under
section 24AB(6).

 

I am the DFAT officer with whom you may consult if you wish to revise the
request to a narrower scope such that it could in fact be processed. I may
be contacted by email at: [1][DFAT request email] and I am happy to take any
reasonable steps provide you, so far as is reasonably practicable, with
any information that I can to assist you in amending your request under
the FOI Act.

 

Please note that during this period of consultation, the statutory
timeframe under section 15(5) of the FOI Act for the processing of your
request is on hold (see section 24AB(8) for details).

I have attached a copy of sections 24, 24AA and 24AB of the FOI Act for
your information.

 

Yours sincerely,

 

 

+------------------------------------------------------------------------+
|Marie-Charlotte McKenna | |
| |  |
|Director, Legal | |
|Department of Foreign Affairs and Trade | |
|------------------------------------------------------------------------|
|FOI and Privacy Law Section |T |  +61 2 6261 9852 |
|-----------------------------------------+------------------------------|
|Corporate Legal Branch |W|  [2]www.dfat.gov.au |
|-----------------------------------------+------------------------------|
|Legal Division | |
|-----------------------------------------+------------------------------|
+------------------------------------------------------------------------+

 

  Please note that I work on Mondays, Tuesdays, Thursday and Fridays.

 

This email and any attachments may contain confidential information or
legal advice over which legal professional privilege can be claimed. Such
privilege is not waived and you should ensure that, in your handling of
the advice, you avoid waiving privilege. Please consult the author of the
advice if unsure about appropriate handling.

 

 

 

24  Power to refuse request—diversion of resources etc.

             (1)  If an agency or Minister is satisfied, when dealing with
a request for a document, that a practical refusal reason exists in
relation to the request (see section 24AA), the agency or Minister:

                     (a)  must undertake a request consultation process
(see section 24AB); and

                     (b)  if, after the request consultation process, the
agency or Minister is satisfied that the practical refusal reason still
exists—the agency or Minister may refuse to give access to the document in
accordance with the request.

             (2)  For the purposes of this section, the agency or Minister
may treat 2 or more requests as a single request if the agency or Minister
is satisfied that:

                     (a)  the requests relate to the same document or
documents; or

                     (b)  the requests relate to documents, the subject
matter of which is substantially the same.

24AA  When does a practical refusal reason exist?

             (1)  For the purposes of section 24, a practical refusal
reason exists in relation to a request for a document if either (or both)
of the following applies:

                     (a)  the work involved in processing the request:

                              (i)  in the case of an agency—would
substantially and unreasonably divert the resources of the agency from its
other operations; or

                             (ii)  in the case of a Minister—would
substantially and unreasonably interfere with the performance of the
Minister’s functions;

                     (b)  the request does not satisfy the requirement in
paragraph 15(2)(b) (identification of documents).

             (2)  Subject to subsection (3), but without limiting the
matters to which the agency or Minister may have regard, in deciding
whether a practical refusal reason exists, the agency or Minister must
have regard to the resources that would have to be used for the following:

                     (a)  identifying, locating or collating the documents
within the filing system of the agency, or the office of the Minister;

                     (b)  deciding whether to grant, refuse or defer
access to a document to which the request relates, or to grant access to
an edited copy of such a document, including resources that would have to
be used for:

                              (i)  examining the document; or

                             (ii)  consulting with any person or body in
relation to the request;

                     (c)  making a copy, or an edited copy, of the
document;

                     (d)  notifying any interim or final decision on the
request.

             (3)  In deciding whether a practical refusal reason exists,
an agency or Minister must not have regard to:

                     (a)  any reasons that the applicant gives for
requesting access; or

                     (b)  the agency’s or Minister’s belief as to what the
applicant’s reasons are for requesting access; or

                     (c)  any maximum amount, specified in the
regulations, payable as a charge for processing a request of that kind.

24AB  What is a request consultation process?

Scope

             (1)  This section sets out what is a request consultation
process for the purposes of section 24.

Requirement to notify

             (2)  The agency or Minister must give the applicant a written
notice stating the following:

                     (a)  an intention to refuse access to a document in
accordance with a request;

                     (b)  the practical refusal reason;

                     (c)  the name of an officer of the agency or member
of staff of the Minister (the contact person) with whom the applicant may
consult during a period;

                     (d)  details of how the applicant may contact the
contact person;

                     (e)  that the period (the consultation period) during
which the applicant may consult with the contact person is 14 days after
the day the applicant is given the notice.

Assistance to revise request

             (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:

                     (a)  giving the applicant a reasonable opportunity to
consult with the contact person;

                     (b)  providing the applicant with any information
that would assist the applicant to revise the request.

Extension of consultation period

             (5)  The contact person may, with the applicant’s agreement,
extend the consultation period by written notice to the applicant.

Outcome of request consultation process

             (6)  The applicant must, before the end of the consultation
period, do one of the following, by written notice to the agency or
Minister:

                     (a)  withdraw the request;

                     (b)  make a revised request;

                     (c)  indicate that the applicant does not wish to
revise the request.

             (7)  The request is taken to have been withdrawn under
subsection (6) at the end of the consultation period if:

                     (a)  the applicant does not consult the contact
person during the consultation period in accordance with the notice; or

                     (b)  the applicant does not do one of the things
mentioned in subsection (6) before the end of the consultation period.

Consultation period to be disregarded in calculating processing period

             (8)  The period starting on the day an applicant is given a
notice under subsection (2) and ending on the day the applicant does one
of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in
working out the 30 day period mentioned in paragraph 15(5)(b).

Note:          Paragraph 15(5)(b) requires that an agency or Minister take
all reasonable steps to notify an applicant of a decision on the
applicant’s request within 30 days after the request is made.

No more than one request consultation process required

             (9)  To avoid doubt, this section only obliges the agency or
Minister to undertake a request consultation process once for any
particular request.

 

 

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