Dear Mr Molloy,

Re: Freedom of Information (FOI) Request

Thank you for your e-mail dated 10 May 2013, seeking access under the Freedom of Information Act 1982 (the FOI Act) to:

1) 12/14912 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Trans-Pacific Partnership (TPP) Round 15 (New Zealand)
2) 12/14914 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Trans-Pacific Partnership (TPP) Round 15 (New Zealand)
3) 12/17853 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Negotiations - TRANS-PACIFIC PARTNERSHIP (TPP) ENVIRONMENT ROUND 16
(SINGAPORE)
4) 12/11586 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Negotiations - Trans-Pacific Partnership (TPP) - Mexico - Legal
Issues
5) 12/11587 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Negotiations - Trans-Pacific Partnership (TPP) - Canada - Legal
Issues
6) 12/11588 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Negotiations - Trans-Pacific Partnership (TPP) - Reference -
Australia-Korea FTA (AKFTA) negotiating texts
7) 12/10932 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Trans-Pacific Partnership (TPP) reporting and other Issues (Not
Membership)
8) 12/10899 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Australia-US Free Trade Agreement (AUSFTA) Post-Implementation
9) 12/11019 TRADE - AGREEMENTS - Trans Pacific Partnership (TPP) -
New Members Briefing - Canada and Mexico (2012)

DFAT intends to refuse the request as currently framed, on the grounds that the work involved in processing it would substantially and unreasonably divert DFAT’s resources from its other operations. Each element of your request is a file. Taken together, these files contain several hundred documents which would require assessment for release under FOI.

For your information, the page breakdown of the electronically available files is as follows:

12/14914 - 83 electronic records, some with attachments. This file is predominantly concerned with logistics for the New Zealand round, eg travel and accommodation.

12/17853 - 161 electronic records, some with attachments. I have been advised by the relevant line area that approximately 10% of the documents on this file might be releasable.

12/11586 - 4 records, with 25pp of attachments.

12/11587 - 3 records, with 10pp attachments.

12/11588 - 3 electronic records, with 24pp attachments. I have been advised by the relevant line area that very few of the documents on this file would be releasable.

12/10932 - 154 records, some with attachments. I have been advised by the line area that approximately 50% of this file might be releasable.

12/11019 - 16 records, with 180pp attachments.

I have been advised by DFAT Corporate Records that file 12/14912 was consolidated with 12/14914 as two files were concurrently opened by mistake. No documents were filed under 12/14912.

The Office of the Australian Information Commissioner (OAIC) proposes that 40 hours of decision-making time constitutes a 'reasonable' request. See the OAIC's submission to the current Review of the FOI Act, available at http://www.ag.gov.au/Consultations/Docum..., paragraph 205).

In its current form, your request captures approximately 800 pages of documents which would require over 190 hours of processing time, which is greatly in excess of 40 hours. Further, if DFAT were to process this request, it would attract charges of over $4,000.

Practical refusal reason
Notice is hereby given under s24AB(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 had regard to the following matters. 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. I have been assisted in this task by estimates provided by members of staff in the [line area] of DFAT to determine an estimate of the probable resource demands posed by your FOI request.

Processing this request would, in my view, be a substantial and unreasonable diversion of DFAT’s resources within the meaning of s.24AA(1).
Consultation process

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 on (02( 6261 3470 and I am happy to provide you so far as is reasonably practicable with any information that I can to assist in amending your request under the FOI Act.

In accordance with s. 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 s. 24AB(7)(a), your request will be taken to have been withdrawn under s. 24AB(6).

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).

Sections 24, 24AA and 24AB of the FOI Act follow for your information.

Yours sincerely

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

Attachment A
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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Dear Mr Molloy,

As noted in my e-mail, the file breakdown was for those files which are electronically available. 12/10899 is a hard copy file to which I do not have electronic access. It contains approximately 100pp, and I have been advised by the relevant line area that few of the documents on this file would be releasable.

12/10932 appears to be a file of miscellaneous items covering topics such as briefing and other notes for a variety of meetings, communications with States and Territories, documents associated with the line area's internal financial planning, and responses to interview requests.

Yours sincerely,

Ada Cheung
a/g Director
Freedom of Information and Privacy Law Section
Domestic Law Branch
International Law Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144

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Dear Mr Molloy

Thank you for your email below requesting access under the Freedom of Information Act 1982 to;

'copies of the documents contained within the file 12/10899 TRADE - AGREEMENTS - Free Trade Agreements (FTA) - Australia-US Free Trade Agreement (AUSFTA) Post-Implementation'.

Your original request (Reference number 1305-F557) is considered to have been withdrawn and relevant documents will now be collated in response to your new request. I will contact you once this process is complete.

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 released documents within 24 hours of your receipt of the documents.

Should you require any further information please do not hesitate to contact the undersigned on (02) 6261 3212 or by return email.

Yours sincerely

John Scott
Executive Officer
Freedom of Information and Privacy Law Section
Domestic Law Branch

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Dear Mr Molloy

Our exchange of correspondence concerning your recent FOI request for documents on file 12/10899 refers.
The attached charges letter provides our cost to process your re-scoped request. It is self-explanatory.

John Scott
Executive Officer
Freedom of Information and Privacy Law Section Domestic Law Branch

Dear Mr Molloy

Thank you for your email.

Enquiries with the relevant line area concerned have revealed that the
specific file 12/10899 does not contain documents relevant to the
intellectual property and TPMs aspects of the FTA, including any economic
modelling or analysis of these areas.

I would therefore be grateful if you could confirm how you wish to proceed
with this request which in its current form would attract a practical
refusal on the grounds that relevant documents do not exist.

Please note a copy of this email has been sent to Ada Cheung, Acting
Director, Freedom of Information and Privacy Law Section for her
information.

Yours sincerely

+------------------------------------------------------------------------+
|Stephanie Allan | |
| |  |
|Executive Officer | |
|Department of Foreign Affairs and Trade | |
|------------------------------------------------------------------------|
|Freedom of Information and Privacy Law | E |  |
|Section |[email address]|
|--------------------------------------------+---------------------------|
|Domestic Legal Branch | T |  +61 2 6261 3461 |
|--------------------------------------------+---------------------------|
|International Organisations and Legal | W|  [1]www.dfat.gov.au |
|Division | |
|--------------------------------------------+---------------------------|
| |  |  |
|--------------------------------------------+-----------------+---------|
+------------------------------------------------------------------------+

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Thank you for responding Mr Molloy.

I will proceed to close the file.

Yours sincerely

+------------------------------------------------------------------------+
|Stephanie Allan | |
| |  |
|Executive Officer | |
|Department of Foreign Affairs and Trade | |
|------------------------------------------------------------------------|
|Freedom of Information and Privacy Law | E |  |
|Section |[email address]|
|--------------------------------------------+---------------------------|
|Domestic Legal Branch | T |  +61 2 6261 3461 |
|--------------------------------------------+---------------------------|
|International Organisations and Legal | W|  [1]www.dfat.gov.au |
|Division | |
|--------------------------------------------+---------------------------|
| |  |  |
|--------------------------------------------+-----------------+---------|
+------------------------------------------------------------------------+

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