Proof of section 45 applicability used to refuse my FoI requets
Dear Department of Finance,
Please disclose document(s) proving that on or before I made the first of my earlier FoI requests to your department, that all six (each item in (numbered) parentheses below) the following applied:
[5.159] To found an action for breach of confidence (which means section 45 would apply), the following five criteria must be satisfied in relation to the information:
• it must be specifically identified
(1) documents "specifically identifying" that the name of domains are confidential
• it must have the necessary quality of confidentiality
(2) documents proving the necessity that names of domains are confidential (keeping in mind that these are published on the public internet's DNS, whois, and other systems)
• it must have been communicated and received on the basis of a mutual understanding of confidence
(3) proof that there was an understanding of confidence in place at the time I made my FoI request, AND that it was mutual.
• it must have been disclosed or threatened to be disclosed, without authority
(4) proof that the above confidentiality criteria has been met.
• unauthorised disclosure of the information has or will cause detriment.
(5) documents proving that disclosure will cause detriment, even though (in this instance) it will be authorised (under the FoI act itself).
(6) Keeping in mind that I am requesting this information from your department, please provide documents identifying (by name or alternatively by role/position and organisation) the "person (other than an agency or the Commonwealth)" who would be found in "breach of confidence.", as per the wording of the act - which is:-
"A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence."
If any of the above do not exist or cannot be found, I will in the alternative accept the list of domains instead, as I originally requested in my prior FoI applications.
I am requesting the above information for the purposes of proposing FoI law amendments to prevent future public access to outsourced documents from being refused.
Yours faithfully,
C Drake
Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.
Kind regards
FOI Coordinator
SEC=OFFICIAL
Dear Mr Drake
Freedom of Information Request – FOI 22-23/09
Thank you for your email to the Department of Finance (Finance) requesting
access to documents under the Freedom of Information Act 1982 (FOI Act). A
copy of your request is attached.
Preliminary charges notice
Please also see attached a preliminary charges notice for your attention.
General FOI matters
Your request was received by Finance on 28 January 2023. The statutory
period for processing your request commences from the day after Finance
received your request and a decision was originally due on 27 February
2023. We note that the preliminary charges notice affects the processing
timeframe.
The processing period may be extended if we need to consult third parties
or for other reasons. We will advise you if this happens.
Publication
As required by the FOI Act, any documents provided to you under the FOI
Act will be published on our [1]disclosure log, unless an exemption
applies or the documents are characterised as containing personal
information. Documents will be published the next working day after they
are released to you.
Policy to exclude junior officer contact details, signatures and mobile
phone numbers
Finance has adopted a policy to generally exclude from any documents
released under FOI, the names and contact details of junior staff (non-SES
officers) and staff employed under the Members of Parliament (Staff) Act
1984 (adviser level and below). Finance has also adopted a policy to
exclude signatures and mobile phone numbers from any documents released
under FOI (unless publicly available). Finance’s preference is to reach
agreement with FOI applicants to exclude these details from the scope of
the request. Where there is no objection, the names and contact details of
junior officers, as well as any signatures and mobile phone numbers
appearing in identified documents, will be redacted under section 22 of
the FOI Act on the basis that these details are irrelevant to the request.
Please contact the FOI Team on the below contact details if you wish to
discuss your request.
Kind regards
[2]cid:image001.jpg@01D20F6A.F1CA1B30
FOI Officer | Legal and Assurance Branch
Business Enabling Services
Department of Finance
A: One Canberra Avenue, Forrest ACT 2603
SEC=OFFICIAL
References
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1. https://www.finance.gov.au/about-us/free...
Dear FOI Requests,
It is my understanding that requests for the purposes of legislation amendments are exempt from charges. It is also my understanding that is is not lawful to impose charges for the purpose of discouraging FoI request - which is clearly the purpose in this instance.
That said - your charge notice fails to comply with the act. Please withdraw it, or correct it.
1(b). You have not provided "the basis on which the assessment is made" in respect of the extraordinary amount of "decision making time" you allege is required for documents which you state you have already retrieved.
1(d). Why you believe that revelation of these documents are not sufficiently in the public interest to warrant exemption from charges (taking into account 11B(4)).
and 1(e).
Yours sincerely,
C Drake
Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.
Kind regards
FOI Coordinator
OFFICIAL
OFFICIAL
Dear Mr Drake
Please see attached a charges contention decision in relation to your FOI
request (our reference FOI 22-23/09).
Kind regards
FOI Officer | Legal and Assurance Branch
Business Enabling Services
Department of Finance
A: One Canberra Avenue, Forrest ACT 2603
Classification: OFFICIAL
Classified by: [email address] on: 3/03/2023 5:10:59 PMClassification:
OFFICIAL
Classified by: [1][email address] on: 3/03/2023 5:10:59 PM
References
Visible links
1. mailto:[email address]
Dear FOI Requests,
Please identify the 3 documents of 66 pages that you have found, and let me know which of my 6 identified criteria each of those applies to.
I need to be sure that my payment will result in the disclosure of the information I am seeking, and that you will not just take my money knowing in advance that you're not going to satisfy my FoI request.
Yours sincerely,
C Drake
Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.
Kind regards
FOI Coordinator
OFFICIAL
Good afternoon Mr Drake
The Department of Finance (Finance) has reviewed your email response below
to the Charges decision letter (sent on 3 March 2023) and it does not
appear that you have made a decision on whether to pay the charge for your
FOI request.
As set out in the Charges decision letter, within 30 days of the notice,
you need to either:
o Agree to pay the charge of $151.50; or
o Seek an internal review of this charges decision; or
o Withdraw your request.
Notice must be provided to Finance in writing. If you fail to notify
Finance in a manner described above within 30 days of the date on this
notice, being on or before 2 April 2023, it will be taken that you have
withdrawn your request.
We note that in your email response you state:
I need to be sure that my payment will result in the disclosure of the
information I am seeking, and that you will not just take my money knowing
in advance that you're not going to satisfy my FoI request.
In accordance with the Freedom of Information (Charges) Regulations 2019
(Charges Regulations) and the Freedom of Information Guidelines issued by
the Office of the Australian Information Commissioner, an agency or
minister may impose a charge in respect of a request for access to a
document. Charges listed in Schedule 1 of the Charges Regulations
includes:
Decision making: time spent deciding to grant or refuse a request,
including examining documents, consulting other parties, making deletions,
or notifying any interim or final decision on the request
We note that payment of the charge would resume the processing of your
request. The decision maker would still assess and decide, and provide you
a statement of reasons in respect of your request. The decision maker can
decide to grant, refuse or defer access to the document or to grant access
to a copy of the document with deletions.
Kind regards
FOI Officer | Legal and Assurance Branch
Business Enabling Services
Department of Finance
E: [1][Finance request email]
A: One Canberra Avenue, Forrest ACT 2603
Classification: OFFICIAL
Classified by: [FOI #9861 email] on: 18/03/2023
12:18:25 PM
-----Original Message-----
From: C Drake <[FOI #9861 email]>
Sent: Tuesday, 14 March 2023 8:31 AM
To: FOI Requests <[email address]>
Subject: Re: FOI 22-23-09 Charges contention decision letter
[SEC=OFFICIAL]
Dear FOI Requests,
Please identify the 3 documents of 66 pages that you have found, and let
me know which of my 6 identified criteria each of those applies to.
I need to be sure that my payment will result in the disclosure of the
information I am seeking, and that you will not just take my money knowing
in advance that you're not going to satisfy my FoI request.
Yours sincerely,
C Drake
-----Original Message-----
OFFICIAL
OFFICIAL
Dear Mr Drake
Please see attached a charges contention decision in relation to your FOI
request (our reference FOI 22-23/09).
Kind regards
FOI Officer | Legal and Assurance Branch
Business Enabling Services
Department of Finance
A: One Canberra Avenue, Forrest ACT 2603
Classification: OFFICIAL
Classified by: [email address] on: 3/03/2023 5:10:59 PMClassification:
OFFICIAL
Classified by: [1][email address] on: 3/03/2023 5:10:59 PM
References
Visible links
1. [2]mailto:[email address]
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References
Visible links
1. mailto:[Finance request email]
2. mailto:[email
3. mailto:[FOI #9861 email]
4. https://aus01.safelinks.protection.outlo...
OFFICIAL
Dear Mr Drake
Freedom of Information Request – FOI 22-23/009
On Friday 3 March 2023, the Department of Finance (Finance) sent you a
charges contention decision letter (a copy is attached).
The letter informed you that pursuant to the Freedom of Information Act
1982 (FOI Act) that within 30 days of the date of the letter, you were
required to either agree to pay the charge, seek a review of the charge,
or withdraw your request. After that time, [1]subsection 29(2) of the FOI
Act deems your request to have been withdrawn.
You replied on Tuesday 14 March 2023, but not in the required, as
described above.
Finance emailed you on Monday 20 March 2023, advising that you did not
respond in an appropriate manner for Finance to proceed with processing of
your request. Finance also provided further information about the charges
process.
As Finance has not received an appropriate response from you within the
timeframe, your request is now withdrawn.
Kind regards
FOI Officer | Legal and Assurance Branch
Business Enabling Services
Department of Finance
A: One Canberra Avenue, Forrest ACT 2603
Classification: OFFICIAL
Classified by: [email address] on: 4/04/2023 8:01:13 AM
References
Visible links
1. http://www8.austlii.edu.au/cgi-bin/viewd...