Trade Agreements
Dear Department of Foreign Affairs and Trade,
I hereby request, under the Freedom of Information Act (1982),
copies of the following documents:
12/10932 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Trans-Pacific Partnership (TPP) reporting and other Issues (Not
Membership)
12/10899 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Australia-US Free Trade Agreement (AUSFTA) Post-Implementation
12/11019 TRADE - AGREEMENTS - Trans Pacific Partnership (TPP)
I also make the application that all costs for the processing of
this request be waived on the grounds that the release of this
information is in the public interest, will enhance the
transparency of the process and the public debate surrounding
potential legislative changes.
Yours faithfully,
Red
Dear Red,
Thank you for your e-mail dated 23 May 2013, seeking access under
the Freedom of Information Act 1982 (the FOI Act) to:
12/10932 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Trans-Pacific Partnership (TPP) reporting and other Issues (Not
Membership)
12/10899 TRADE - AGREEMENTS - Free Trade Agreements (FTA) -
Australia-US Free Trade Agreement (AUSFTA) Post-Implementation.
This is a hard copy file containing approximately 100 pages. I have been
advised by the line area that very few documents contained in 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 TRADE - AGREEMENTS - Trans Pacific Partnership (TPP) -
New Members Briefing - Canada and Mexico (2012)
12/11019 - 16 records, with 180pp attachments.
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:
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 450 pages
of documents which would require over 100 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 $2,000.
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.
Dear Ada,
Thank you for your response, however I am somewhat puzzled by it. You have indicated that it will take over 100 hours to process a request capturing approximately 450 pages. I am not sure how you have arrived at this figure of 100 hours but it seems incredible to me that you are suggesting your staff can only process 4.5 pages per hour. Clearly the Government's efficiency dividends haven't resulted in efficiencies in DFAT's FOI processes!
In his recent decision 'T' and Australian Securities and Investments Commission [2013] AICmr 33 (27 March 2013), the OAIC suggested in that matter that ASIC had over-estimated the length of time it would take to process the request from 'T'. I suggest that you are similarly over-estimating the length of time this request will take to finalise.
Regarding 12/10899 you advise that this is a hard copy file containing approximately 100 pages and that you have been advised by the line area that very few documents contained in this file would be releasable.
Regarding 12/10932 you advise there are 154 records, some with attachments and that you have been advised
by the line area that approximately 50% of this file might be releasable.
Regarding 12/11019 you advise there are 16 records, with 180pp attachments.
Given that so much work has already gone into identifying the pages subject to this request, and further given that some analysis appears to have already been undertaken to ascertain whether some of these documents might be exempt, I doubt very much that it will take more than 100 hours to process this request.
I therefore decline the opportunity to revise the scope of my request and retain the original scope of my request as follows:
I hereby request, under the Freedom of Information Act (1982), copies of the following documents:
12/10932 TRADE - AGREEMENTS - Free Trade Agreements (FTA) - Trans-Pacific Partnership (TPP) reporting and other Issues (Not Membership)
12/10899 TRADE - AGREEMENTS - Free Trade Agreements (FTA) - Australia-US Free Trade Agreement (AUSFTA) Post-Implementation
12/11019 TRADE - AGREEMENTS - Trans Pacific Partnership (TPP)
I also make the application that all costs for the processing of this request be waived on the grounds that the release of this information is in the public interest, will enhance the transparency of the process and the public debate surrounding potential legislative changes.
Should you formally refuse my request I will seek a review of your decision by the OAIC.
Yours sincerely,
Red
Dear Red,
The time estimate provided to you was on the basis of the spreadsheet provided by the Australian Government Solicitor for the purposes of calculating FOI charges pursuant to section 29 of the FOI Act, and the FOI (Charges) Regulations Statutory Rules 1982.
As you decline to rescope your application, the notice of practical refusal made under section 22AA(1)(a)(i) stands. Please find attached the formal notification of the outcome of your request.
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
Locutus Sum left an annotation ()
You are likely aware of the following ideas but some other users maybe not.
First, the decision in 'T' and Australian Securities and Investments Commission [2013] AICmr 33 (27 March 2013) (http://www.austlii.edu.au/au/cases/cth/A...) was the result of a review of an original decision made on 8 December 2011. That was a delay of 475 days and that was a quick decision!
Second, in Guidelines issued by the Information Commissioner say "10.2: A person who disagrees with an agency’s or minister’s decision following a request for access to a document may apply to the Information Commissioner for review under Part VII (IC review). It is not necessary to go through the agency’s internal review process first before applying for an IC review. However, the Information Commissioner is of the view that it is usually better for a person to seek internal review of an agency decision before applying for an IC review. An agency’s internal review process gives the agency an opportunity to reconsider the initial decision, usually at a more senior level, and the result may well meet the applicant’s needs in a shorter timeframe than is available in the IC review process."
Naturally you can apply directly for an external review but maybe it is for you faster to ask first for an internal review. It would be an unpleasant delay for you if the OAIC processes your application after many months and then says, as they are permitted, that you should first go back to the Department of Foreign Affairs and Trade and ask for an internal review.
Third, on an application for internal review, you may think about whether the department has correctly applied section 24(2). Are the documents truly about the same subject matter, or are they different in significant respects? For example, the department cannot just say that all the documents are about "foreign affairs and trade" and then choose to treat three applications as one! I do not know any answers to these questions but maybe you do and maybe the department has made a mistake.
Dear Mr Williams,
Please find attached a letter from the Department pursuant to section 55G of the FOI Act.
Yours sincerely,
Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Corporate Law Branch
Legal Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144
Alex Sadleir left an annotation ()
This practical refusal has attached the documents list from one of the 3 files. Including several "Tea and coffee request" emails seems to have unnecessarily increased the number of pages to consider.
Dear FOI,
As per your suggestion I am prepared to narrow the scope of my request to be for the contents of file 12/11019.
Yours sincerely,
Red
Ben Fairless left an annotation ()
Right to Know has received the below response from DFAT FOI:
"The statement that this request is awaiting response by 19 May is incorrect. Our advice from the OAIC is that the most recent message does not constitute a FOI request for the purposes of the Act; the OAIC has also advised Red of this in the course of finalising his IC review."
Red, would you be able to update the status for us (I'm not sure if you would call this refused of if you have withdrawn it)
Thanks,
Ben
Right to Know Administrator
Dear FOI,
As discussed with the office of the OAIC, I am clarifying my FOI request. You may wish to deem this a continuation of the previous request or you might choose to view this as a new request.
Either way, under the provisions of the FOI Act, please provide me with a copy of the documents within file 12/11019. To simplify my request further, please only provide final versions of documents within this file.
Yours sincerely,
Red
Our ref: 1406-F836
Dear Mr Williams,
Thank you for your e-mail of 1 June requesting access under FOI to the contents of file 12/11019.
As your request was received on 1 June, 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 2 July. 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:
I would be grateful if you could confirm whether the scope of your request includes the text of the Canada-Chile Free Trade Agreement. This document is held on file 12/11019, but is publicly available at: http://www.international.gc.ca/trade-agr...
Exclusion of officers’ names and contact details:
It is the Department’s policy to withhold the names and contact details of officers not in the Senior Executive Service (SES) within the Department and other agencies contained within documents that fall within scope of the request. If you require the names and contact details of non-SES officers 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 released documents within one business day of your receipt of the documents.
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 www.dfat.gov.au and contains information about access to or correction of your personal information, and how you may complain about a breach of your privacy.
Should you require any further information, please do not hesitate to contact me on (02) 6261 3470, or by return email.
Please note a copy of this email has been sent to Ms Indra McCormick, Director, Freedom of Information and Privacy Law Section.
Yours sincerely,
Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Corporate Law Branch
Legal Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144
Dear FOI,
I can confirm that the scope of my request excludes the text of the Canada-Chile Free Trade Agreement
Yours sincerely,
Red
Dear Mr Williams,
Thank you for clarifying the scope of your request.
Please find attached the charges letter in relation to your FOI request.
Yours sincerely,
Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Corporate Law Branch
Legal Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144
Dear FOI,
The broad objective of the Freedom of Information Act 1982 is to provide the public with a legal right to seek access to documents in the Government's possession.
Access to documents is limited only by exemptions that protect essential public interests and the private and business affairs of people about whom departments and statutory authorities hold information.
However it appears that DFAT also wishes to restrict access on the basis of inflated charges.
In your response to me on 24 May 2013 (yes, over a year ago!)you advised, "In its current form, your request captures approximately 450 pages of documents which would require over 100 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 $2,000."
Since then, the OAIC has engaged with you and I regarding this request, and as a result I have severely limited the scope of my request. Now you contend that it will cost $322 for the department to assess 66 pages. What a joke! At even 2 minutes per page (unlikely) there is only a touch over 2 hours worth of assessment required. Then maybe a further hour to write a decision. Please clarify how the figure of $322 was arrived at?
I contend that the release of this informtion is in the public interest and that charges should be waived. Information about free trade agreements that our government commits us to without any genuine consulation or transparency should be made available on your IPS for anyone to access without needing to resort to FOI requests.
Please withdraw these charges.
Yours sincerely,
Red
P.S. Schedule 1 of the Charges Regs is the answer to how the figure was arrived at.
Dear FOI,
Do you have a copy of Schedule 1 of the Charges Regs? and will you be answering my questions in full?
Yours sincerely,
Red
Dear Mr Williams,
Please find attached the Department's response to your request for waiver of the FOI processing fees.
Yours sincerely,
Ada Cheung
Executive Officer
Freedom of Information and Privacy Law Section
Corporate Law Branch
Legal Division
Department of Foreign Affairs and Trade
Tel: +61 2 6261 3470
Fax: +61 2 6261 2144
Dear FOI,
A vague reference to Schedule 1 of the Charge Regs does little to answer my question - Please
clarify how the figure of $322 was arrived at?
If the first 5 hours are free am I seriously supposed to believe that an additional 16 hours is required to assess 66 pages?
Yours sincerely,
Red
This inbox is unattended until Wednesday 31 December, and your message
will be responded to after that date.
Please note that DFAT offices are closed from 4pm Tuesday 23 December
until 9am Wednesday 31 December 2014.
Dear Department of Foreign Affairs and Trade,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Department of Foreign Affairs and Trade's handling of my FOI request 'Trade Agreements'.
I have been advised that in order to process my request the department deems it appropriate to charge
me $322. Apparently this charge does not include 5 hours of free processing time. When I query this charge I am just ignored. How disrespectful.
I am unconvinced that it will take 16 hours to assess 66 pages. Where does the necessity for paying an
$322 come into it? You have not actually explained how
this figure was arrived at.
The FOI Act was reformed in 2010. These reforms placed new pro-disclosure requirements on agencies and ministers. What a shamebthat your department is not acting in the spirit of theblegislation!
Pro-disclosure does not mean pricing FOI requests out
off reach of ordinary citizens.
Section 3(4) of the Act states: The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The lowest reasonable cost is FREE.
Please review the decision to impose a disproportionate charge on
my 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/t...
Yours faithfully,
Red
Dear Mr Williams
In response to your query concerning the status of an FOI request you submitted to the Department in June 2014, I can confirm that your request was deemed to be withdrawn on 25 July 2014.
According to our records, you were notified of processing charges on 10 of June 2014. On 25 June 2014, the Department responded to your request for waiver of the charges. As the Department neither received the specified deposit or any subsequent communication from you, your request was deemed withdrawn on 25 July 2014 pursuant to section 29(2) of the Freedom of Information Act.
Please note that, further to the charges letter of 25 July 2014, review procedures are detailed in section 54 of the FOI Act. According to Section 54B of the FOI Act, an application for internal review must be made within 30 days of notification of the (charges) decision. According to Section 54S, an IC review application must be made within 60 days after notification of the (charges) decision. Given the charges decision dates back to 25 June 2014, any existing review rights have expired.
Yours sincerely
Indra McCormick
Director, Legal
Freedom of Information and Privacy Law Section
Department of Foreign Affairs and Trade
Vera Lystich left an annotation ()
I can see an email from Red to DFAT on 16/7, can we assume they didn't get it?
Dear FOI,
You are mistaken when you say 'no subsequent' communication was received. I clearly responded to you on July 16.
It appears that your department is incapable of even acknowledging communication with it.
Yours sincerely,
Red
Ben Fairless left an annotation ()
I can confirm that Right to Know successfully delivered the email to DFAT on July 16th 2014, which was accepted by the Department's Mail server.
Red left an annotation ()
I have applied to the OAIC for an external review of this decision.