Recent Correspondence with RTK Applicants
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,
I request, under the Freedom of Information Act:
- A copy of the most recent PDF document issued by the Department for the below requests:
-- https://www.righttoknow.org.au/request/f...
-- https://www.righttoknow.org.au/request/f...
-- https://www.righttoknow.org.au/request/i...
-- https://www.righttoknow.org.au/request/d...
Access to be provided in specified format
--------------------------------------------
I note that the s20(2) of the Freedom of Information Act states that:
"Subject to subsection (3) and to section 22, where the applicant has requested access in a particular form, access shall be given in that form."
I therefore request that:
- Access be provided in a format that is readable by Microsoft Word;
- The documents be sent to the original Right to Know email addresses that the request was made from.
I also make a request that the charges associated with this request be waived, as access to these documents in an accessible format is of great interest to a section of the public, namely with visual disabilities who would like to read the documents on Right to Know.
Yours faithfully,
Ben Fairless
UNCLASSIFIED
Our references: FA 14/06/01023; ADF2014/22270
Mr Ben Fairless
By email: [FOI #659 email]
Dear Mr Fairless
Thank you for your email of 24 June 2014.
This email is to advise you that the Department registered your request as
being received on Tuesday 24 June 2014, but has not accepted the request
as a valid request under the Freedom of Information Act 1982 (the Act).
In your request, you asked for ‘a copy of the most recent PDF document
issued by the Department for the following requests:
1. Detail Incident Report 1-2RIU6K – from you on 28 March 2014 –
currently under review with the OAIC.
2. Detail Incident Report 1-3FL5KV – from D. Loganathan on 29 April
2014 – deemed withdrawn for non-response to a charge notice.
3. Internet Censorship - Nauru Regional Processing Center – from
‘Deep Thought’ on 19 May 2014 – finalised on 18 June 2014.
4. Documents related to Twitter posts made to @VanessaPowell25 – from
you on 6 April 2014 – deemed withdrawn for non-response to charges notice.
You requested that the Department provide you with copies of the documents
in Microsoft Word format, relying on s.20(2) of the Act. You have
requested that the Department basically ‘resend’ the most recent
correspondence to those applicants, but in Word format rather than PDF.
Two of the documents you have requested (at Points 2 and 3) relate to
requests by two applicants other than yourself. Your request, for a
different format for the last communication between the Department and the
applicants, amounts to an attempt to exercise the rights of those
applicants. As you are not the applicant for those requests, you are not
able to exercise any rights in relation to those requests or to request
that the Department resend correspondence to the addresses of those
applicants.
In relation to the other two requests (at Points 1 and 4) and that relate
to you, as you are aware one is currently at the OAIC’s office for review.
You may raise the issue of ‘form’ with the OAIC if you wish. In relation
to the other request, this was deemed to be withdrawn by you as you did
not respond to a charge notice. At this point in time, the office is not
required to take any further action on either of these requests.
Abuse of process under the Act
A person has the right to request a ‘document of an agency’. The Act makes
it clear that material that is publicly available (through a number of
stated mechanisms) cannot be the subject of a valid FOI request as the
material will not meet the definition of a ‘document’ in s.4(1) of the Act
and so cannot be a ‘document of the agency’.
This reflects the intention of Parliament that the Commonwealth’s FOI
resources be used effectively and efficiently by focusing those resources
on requests for ‘documents’ that are not available to the public through
other means.
Where an agency believes that a request or a series of requests involve an
abuse of process under the Act, the agency may seek a declaration from the
Office of the Australian Information Commissioner that the person is a
vexatious applicant. Using the Act to request copies of pieces of
correspondence that are already in an applicant’s possession or already
freely publicly available (eg on the internet) may be seen to be an abuse
of process.
Your request has been closed on the Department’s systems as invalid.
Yours sincerely
Linda Rossiter
Director FOI and Privacy Policy
Parliamentary and Executive Coordination Branch I Immigration and Border
Protection Portfolio
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 'Recent Correspondence with RTK Applicants'.
The reasons for my request for review are set out below.
Valid Request under the Freedom of Information Act
-----------------------------------------------------------------
In the email from Linda Rossiter, Director FOI and Privacy Policy received on July 24, 2014, Ms. Rossiter states that the Department "has not accepted the request as a valid request under the Freedom of Information Act 1982 (the Act)".
Ms. Rossiter doesn't explain how she considers this new request invalid, other than my request "amounts to an attempt to exercise the rights of [other] applicants." There is no basis in law for Ms. Rossiter to declare a request invalid for this reason.
s.15 of the Act details what makes a valid request. My request satisfies s.15 as the request was:
- for access to documents; and
- in writing; and
- stated that the request is an application for the purposes of the Act; and
- provided such information concerning the document as is reasonably necessary to enable a responsible officer of the agency to identify it; and
- gave details of how notices under this Act may be sent
Ms. Rossiter has erred in declaring this request invalid under the Act. This request satisfies all the requirements of the Act in making a request.
Documents to be provided in specific form
---------------------------------------------------
I am requesting access to documents under the Act. I am also requesting that they be provided in a specific form. Simply requesting a document made for another FOI request could not possibly be considered to be exercising the rights of that applicant.
There is no limit on the form that I can request a document be provided in (s.20(2)).
The Department must comply with a request for documents to be provided in a specific form unless an exception applies (s.20(3) of the Act). I note that the Department has not claimed that an exemption applies under the Act.
Request to deal with OAIC on "form" of documents
--------------------------------------------------------------
This is a new application under the Act. References to the OAIC are irrelevant and an attempt to confuse this request.
"Abuse of Process"
---------------------------------------------------------
The Department appears to imply that this request is an "abuse of process". To support this argument, it seems to imply my request is not a request for "documents" as defined by s.4(1) of the Act. To support this claim, the Department says that "material that is publicly available (through a number of stated mechanisms) cannot be the subject of a valid FOI request"
This position is inconsistent with Diamond v ACARA [2013] AICmr 57, specifically paragraphs 12-22 which appear to be strikingly similar to what the Department is claiming.
In this decision, the FOI Commissioner held that "the fact that a document is publicly available does not mean that it cannot be the subject of a valid FOI application...... apart from the limited circumstances provided for in s 12(1), there is no provision in the FOI Act to refuse access to a document solely on the ground that it is publicly available." (Diamond v ACARA [2013] AICmr 57, paragraph 18).
With the publicly available copies of documents, it is impossible to copy and paste from these documents, and it is very difficult (if not impossible) to use Optical Character Recognition software to read the documents. Therefore, access to an alternative version would be reasonable.
"Vexatious" conduct
---------------------------
The Department cannot refuse to deny access to a document on the basis that they consider the request an abuse of process or vexatious. My alleged vexatiousness is not relevant at this point in time to the decision the Department must make.
Internal Review to be conducted by senior person
---------------------------------------------------------------
s.9.25 of the FOI Guidelines states that "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. If no suitable person can be appointed, the agency should consider discussing with the applicant the option of applying for IC review instead".
I respectfully request that the Department appoint an officer Senior to Ms. Rossiter be appointed to conduct my Internal Review, or advise me accordingly if this is not possible so that I can consider applying for IC review.
Summary
--------------
In summary, this is a new request under the Freedom of Information Act for access to documents. The request states that the requested documents must be provided in a specific form, which is a valid request to make under the Act. The Department is obliged to make a decision under the Act in relation to this request.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...
Yours faithfully,
Ben Fairless
Dear Department of Immigration and Border Protection,
Please can you confirm receipt of my request for Internal Review of Linda Rossiter's decision on my FOI Request "Recent Correspondence with RTK Applicants"?
My request for Internal Review was sent to yourselves on July 25th 2014.[1]?
I note that previous requests for internal review have been acknowledged in as little as 24 hours[2], with one request being acknowledged within the same day[3].
It would seem from a causal glance at all Internal Review cases on Right to Know that you tend to acknowledge IR requests within a few days and I would ask that you not be seen to be intentionally delaying the process for me.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...
Yours faithfully,
Ben Fairless
[1] https://www.righttoknow.org.au/request/r...
UNCLASSIFIED
Our references: FA 14/06/01023; ADF2014/22270
Mr Ben Fairless
By email: [1][FOI #659 email]
Dear Mr Fairless
Thank you for your email dated 25 July 2014 and I apologise for the delay
in responding. The department has noted your concerns. You are welcome to
submit a complaint to the Office of the Australian Information
Commissioner in relation to the handling of your request.
I note that you wish to seek an internal review of my view that your
request was not valid. The internal review mechanism of the Act (s.52 of
the Act) relates to an access refusal decision, access grant decision and
affected third party. The department has not made a decision on your
request rather you have been provided with the advice that the request was
not considered to be valid.
I remain satisfied that your request is not a valid request under the
Freedom of Information Act 1982 (the Act). My reasons for this view were
set out in my email dated 25 July 2014.
Yours sincerely
Linda Rossiter
Director FOI and Privacy Policy
Parliamentary and Executive Coordination Branch I Immigration and Border
Protection Portfolio
UNCLASSIFIED
References
Visible links
1. mailto:[FOI #659 email]
Ben Fairless left an annotation ()
Complaint lodged with DIBP Feedback Unit (Ref: IMMI-14-12891) about the lack of contact regarding this request as I couldn't call to speak to Linda about it. I think its odd that they are taking such a long time to acknowledge the Internal Review Request.