FoI breach? Govt withholds #natsecinquiry docs


news Evidence has emerged that the Federal Attorney-General’s Department may have breached Freedom of Information regulations in delaying the release of documents which will enhance the transparency of its discussions with the telecommunications industry over the controversial National Security Inquiry proposal.

The Federal Attorney-General’s Department is currently promulgating a package of reforms known in total as the ‘National Security Inquiry’ which would see a number of wide-ranging changes made to make it easier for law enforcement and intelligence agencies to monitor what Australians are doing on the Internet. For example, one new power is a data retention protocol which would require ISPs to retain data on their customers’ Internet and telephone activities for up to two years, and changes which would empower agencies to source data on users’ activities on social networking sites.

The data retention and surveillance package has been almost universally opposed by a wide range of political, commercial and special interest groups since it was handed to a parliamentary committee to examine several months ago, with groups as diverse as the Institute of Public Affairs, the Greens, Electronic Frontiers Australia, telcos such as iiNet, the Pirate Party of Australia, Shadow Communications Minister Malcolm Turnbull and Liberal Party backbenchers, Victoria’s Privacy Commissioner and many other segments of the community vehemently opposing the package as a dramatic and unnecessary intervention in Australians’ private lives.

Currently, the only organisations known to support the package include the Attorney-General’s Department, which has been discussing data retention issues internally for at least four years, as well as law enforcement groups such as the Australian Federal Police (AFP) and the Australian Security and Intelligence Organisation (ASIO). Other government departments such as the Australian Taxation Office and the Australian Securities and Investments Commission have also expressed interest in the package.

In an attempt to generate a degree of transparency around the proposals, in late October 2012, Pirate Party Australia secretary Brendan Molloy filed a Freedom of Information request with the department seeking documents pertaining to all consultations held between the AGD and the telecommunications sector during the past several years. It is known that the department has been discussing various aspects of the proposals for several years.

According to an extensive log of the progress of the FoI request posted on transparency site Right to Know, the department wrote back to Molloy in late November, noting that it had gathered the relevant documents but would need to consult with the private sector parties concerned before releasing them to the public.

With this in mind, the department extended the timeframe of its response by 30 days, with the new deadline for it to release the documents being 31 December 2012.

On January 1 2013, with the documents not having been supplied, Molloy wrote back to the deoartment, noting that it was in breach of its deadline. The department subsequently sent an auto-response to Molloy noting that its Freedom of Information division was shut until the new year. “Merry Christmas and Happy New Year!” it added.

The department subsequently sent Molloy an additional email noting that the responsible FoI officer was away and “this information will be passed on to the responsible officer on their return in mid-January 2013”.
Upon receiving this response, Molloy wrote back to the department seeking an internal review of the department’s handling of his FoI request. This step represents the first of two possible steps concerning FoI requests – the next and final step would see a review request filed with the Office of the Australian Information Commissioner.

“The extension period expired on 31 December, 2012 and I am entirely dissatisfied with the boilerplate response sent from the AGD regarding this deadline being missed, as the officer apparently in charge of this request is on leave until 16 January, 2013,” wrote Molloy to the department. “I find the missing of this deadline entirely unacceptable and unwarranted, and would like my request which is now up to its 69th day to be completed as soon as possible.”

The situation – which potentially places the Attorney-General’s Department in breach of FoI regulations – is not the first time the department has been reluctant to release documents under FoI laws.

Late last year, the Pirate Party, which is an activist and political organisation which lobbies to maintain and extend Australians’ digital rights and freedoms, filed a Freedom of Information request with the department, seeking draft national security legislation which had been prepared in 2010 with respect to the current proposal. The draft legislation had been mentioned by the Sydney Morning Herald in an article in August.

However, the Attorney-General’s Department wrote back to the organisation, noting that the request had been denied. Logan Tudor, a legal officer with the department, wrote that he had decided that the draft legislation was exempted from being released because it contained material which was being deliberated on inside the department. “… the release of this material would, in my view, be contrary to the public interest,” Tudor wrote. At the time, the Pirate Party confirmed it would appeal the department’s decision to the Australian Office of the Information Commissioner.

Similarly, in October, Australia’s two major sides of politics combined to block a Senate order moved by the Greens which would have forced the Attorney-General’s Department to produce key documents it is holding regarding advice it had received pertaining to the controversial data retention and surveillance scheme it is pushing.

In two Senate orders he recently put before the parliament, Greens Senator and Communications Spokesperson Scott Ludlam had sought key documents pertaining to the proposal. If they had been successful, the Senate orders would have seen any legal, technical and political advice received by the Government made public and tabled in Parliament, as well as any other relevant information pertaining to the proposed data retention scheme. However, Ludlam said in a statement this afternoon, both Labor and the Coalition voted against the Senate orders.

“It was a perfectly reasonable request made in the interest of open and honest public debate – and the Labor Party and Coalition united to keep this information secret,” said Ludlam at the time. “Today’s vote is a travesty. While the Government believes in the total exposure of private citizens’ correspondence – which is what data retention would mean – it colludes with the Opposition to keep its own plans concealed.”

I am sure that anyone who has filed a FoI request or two with the Attorney-General’s Department over the past few years – and it has been my privilege to file quite a few – will tell you that the department doesn’t like releasing documents under FoI laws and will go to quite extreme lengths to avoid such disclosures. This behaviour with respect to Molloy’s request is nothing new – especially when it comes to the highly secretive data retention/National Security Inquiry proposals, which Australians haven’t even seen any proposed legislation for yet, despite the package affecting our fundamental right to privacy and being almost universally opposed.


  1. “despite the package affecting our fundamental right to privacy”
    I’ve said it before but I’ll mention it again, it would be a direct violation of article 12 of the universal declaration of human rights, carried out against practically every person in Australia.

    So it’s not like this is some subjective thing, it’s a recognised human right which the Commonwealth is obligated to uphold as a member of the UN.

  2. Sorry, on this one I cant feel for the guy. So someone took leave, boo frikin hoo. The reason should be acceptable to any rational person.

    They have stated a reason, and the expected return of the person. Contact them again around that date, and get something concrete from the person, THEN have something to complain about.

    Anyone with any common sense at all knows that this is the worst time of the year for beurocracy, and that things simply slow down over Christmas/New Year.

    Dont get me wrong on this, I fully support Brendan Molloy and what the Pirate Party is trying to do, but I can in no way understand a stance of zero tolerance for a simple matter of leave. Surely he’s taken leave from a job at some point thats delayed his work.

    He comes across more as Mick Molloy than Brendan Molloy…

    • I disagree Gav.

      They should have looked at the date, had a sane thought that, yes, that will be right in the middle of the Christmas Period, lets say Jan 31 instead.

      If they undertake to provide an answer on that date, they should provide an answer on that date.

      • The date would have been some statutory date, like 4 weeks, or 90 days after application, or something like that. The way (most) Govt departments work is that they endeavour to provide a response within a set timeframe, and have service standards against that timeframe.

        In this case, the timeframe has passed, so its a failure against the standards the department works towards. What I’m saying is that if there is any time of the year this is going to happen, its now. People take leave, particularly around Christmas, and particularly with Govt departments, so to expect otherwise is somewhat unreasonable. And Molloy would (or should) know that.

        I’m not saying that its acceptable (or unacceptable for that matter), but the service standards departments work towards are rarely 100% success (more like 90%, 95%, or 97%) for these reasons and that it should be understandable and tolerable. Its not like they have said there wont be an answer, just that its delayed for perfectly natural and understandable reasons. Sometimes statutory timeframes simply cant be met, and when you’re dealing with a sensitive topic thats the case a lot more often.

        And before someone says they should have passed the work on to someone else, all that means is the new person would basically have to start from scratch. It doesnt speed things up, it actually delays an answer.

        • They have failed to provide to the information by the date they set. Which may be fine if further correspondence had been made prior to the due date however they failed to respond at all.

          • So nobody here has ever missed a deadline? Really? This isnt the end of the world, all it means is Molloy gets the information a couple of weeks later.

            I have no doubt that the moment whoever has the case gets back to work one of his (or her) bosses will be on his back to get it done.

            This is all I’m saying. It doesnt make it right, but Molloys reaction is over the top.

            Go to McDonalds drive through, they miss a serve of chips. What you going to do, sue em? Order a pizza, it gets there luke warm, all you do is complain and eat the pizza anyhow. Sometimes things dont get done on time. Let there be repercussions, but let them be appropriate.

            I’ve done legislative work. There are times you set a timeframe and you find out late that somethings far more complicated than you thought. Its not always possible to let the appropriate people know before that time frame is done.

            This is the public service. Things get done differently, because they have laws that force them to do things differently. You mess up, you appologise and move on. Public servant messes up, its loss of job or jail time. You dont take chances just because theres a deadline.

          • As I said nothing really wrong with missing the deadline if you correspond with the client the reason why you are going to miss the deadline, especially when there a legislated consequences for missing that deadline. No different to any other workplace where you have contracted response requirements.

    • “The reason should be acceptable to any rational person.”

      Acceptable? I would say the reason should be ‘un’acceptable to any rational person.

      The FoI response deadline was already specifically extended for the express purpose of allowing enough time, and now it is being extended again by another 50% with the excuse being “whoops, we didnt have enough time before christmas”.

      “I didnt finish all the work I was supposed to do before I took my christmas vacation” isnt an acceptable excuse for not doing your work in any workplace, but particularly when your work is dealing with matters that have national political significance ‘and’ you’re already on an extended deadline.

    • I can’t believe you’re serious. The only way it would be acceptable is if they didn’t know the FoI officer was going to be on leave and it surprised them, otherwise they shouldn’t have extended it to a date when he would be on leave. That’s like a student asking for an extension on their homework deadline to a date that’s in the middle of the holidays, and then blaming the holidays when they don’t hand it in on that date.

  3. If I take leave, it doesn’t get in the way of legislative obligations, as I don’t happen to be a Freedom of Information Officer.

    The law stipulates that if deadline is missed, it is a deemed refusal. I contacted the OAIC regarding this issue, and their response is published on my blog ( If I didn’t take this action, there was indeed the chance they may simply never follow through with the request, leading to a lengthy appeal process with the OAIC.

    Really, the simple fact is they had ample time to complete the request and they failed to complete it within the legislatively defined period, and they did not request another extension before the officer took leave (which I would have consented to).

  4. I cannot agree with you, GongGav. The department stated a deadline by which it would reply.

    It had three options. Firstly, it could have picked a deadline taking into account all possible factors, eg, that the staff member would be on leave.

    Secondly, it could have ensured the work was done before the staff member went on leave.

    Thirdly, it could have allocated the case to another staff member who was not on leave and would have been able to meet the deadline.

    The implication is that the department attaches no importance to deadlines which it promises.

    Just imagine the reaction if you didn’t pay your tax to the tax office by a deadline because your accountant was on holiday for another two weeks. Yes, that would work…….

    • “Just imagine the reaction if you didn’t pay your tax to the tax office by a deadline because your accountant was on holiday for another two weeks” — funnily enough, the reaction would most likely be zero.

      The real world chance of any penalty being applied for a 2 week delay are pretty minimal. Its not cost effective. If it takes longer than that, I’d be looking for a new accountant. If I went to one, which I dont. FYI (and I think this is actually the fist time I’ve mentioned it on the site) I work in the ATO. Shh…

      Look, I get that people dont like it. But as someone that works within the public service, I’m well aware of how these delays happen – it happens with external companies as well. Its something I deal with daily, and at this time of year service standards can almost go out the door. In my case its due to offices commonly being shut down between Christmas and next Monday,

      The implication of this is whatever you want it to be, not that the department attaches no importance. Sorry, I’m not convinced that these hystronics of Brendan Molloy are justified at a time of year when half the population takes leave. Its the sort of sensationalism that we deride in others, so I’m not accepting of it here.

      If after the delay they still dont provide an answer, different story. But for now, the simple fact that someone took leave over Christmas isnt enough to call for the Spanish Inquisition like he seems. As I said, its sensationalism.

      If you ordered something from a store, who promised it by Christmas, then a week or two before Christmas they said that it simply wasnt possible to get it shipped in time, you wouldnt be happy, but you’d understand what stuffed things up. This really isnt much different.

      • “then a week or two before Christmas they said that it simply wasnt possible to get it shipped in time”
        But they didn’t say it wasn’t possible. They knew christmas was coming up, they (presumably) knew the staff member would be on leave, and they made the promise anyway.

        • So thats enough for someone to have a zero tolerance policy, and complain for all to hear, just because the person giving an answer ran out of time before going on leave?

          Really, this is what I dont understand. Sure, somethings gone wrong. But on the basis of whats been stated, I just cant see how the reaction is appropriate, and cant see how people think its not OK to be on leave over Christmas/New Year.

          Thats how I’m reading the responses. The person doesnt deserve leave simply because they have some work that wasnt finished beforehand. I’m sure this wasnt his only request, do you think its possible he was trying to finish another dozen requests before going on leave? Leave the most important one so he gets it right, rather than do a botched job just because theres a deadline?

          Its double standards. If anybody else here was in the same boat with their job, and went on leave, nobody would care. Hell, Renai took 3 weeks off and missed 2 dozen stories, yet rather than lambast him for not doing his job we all just welcomed him back and were secretly (or openly) jealous of his tequila sunrises.

          Meanwhile, he left several stories unreported, and clearly wasnt doing his job. I want to complain to his editor!!! Missing these stories is entirely unacceptable and unwarranted!!! No excuses can be acceptable or tolerated…

          • It’s got nothing to do with leave, it’s to do with promises and communication. They made the promise, knowing it would be very difficult to meet the deadline. Then when ahead of time that they wouldn’t be able to make the deadline for sure (ie. the day before the FoI officer went on leave) they did nothing about it.

            You work in the public sector, is this how it works? Just say you’ll do it and if you can’t just ignore it until somebody complains?

          • Its not just a deadline that doesnt matter. If the deadline passes its deemed a refusal, and thus this could be seen as a cheeky way to deny the request, hidden in red tape.

            If this was a one off, you could understand, but it is not. Especially in the case of netsec they appear to be going out of their way to use red tape to block the release of information, presumably because they know the public isnt going to like it. If that is true, then that is not working for the people. If that is not true, then they need to set a realistic deadline, or extend the deadline and process it when they can. They cant just let it expire and stamp “important politically sensitve document: denied, oops” on the file.

      • Hi Gav,

        I work for the public service as well (DHS) but I completely disagree with you. They missed the deadline therefore its unacceptable. End of story. AGD should of advised Brendon in advance of the extension required for them to complete the request because of two factors:

        a) They knew in advance that Xmas / New year break is a crappy time of the year. This would not have come as a surprise to them as xmas / new year has been around for quite some time.
        b) they would of known in advance that the particular officer would be on leave. TBH I find this excuse a bit of a joke actually, why knowingly assign the request with a due date that falls right before his / her leave?? It’s short sighted workload distribution.

  5. Is any one else absolutely pissed off with this FOI bullshit? Why should public servants, who I pay via my taxes, be entitled to spend their time avoiding requests for the transparency which is supposed to be Government policy.

    It is time that draconian measures were introduced. If a Department doesn’t comply with an FOI request without reasonable cause then the Department Secretary and the responsible FOI officer is automatically sacked and if a court is satisfied that the delay in providing the information is not reasonable then both parties should be locked up for a period of up to five years.

    Maybe the bofins would suddenly understand what the objective of FOI is and we wouldn’t have to put up with their continued bullshit.

      • Well in the private sector if you make a commitment to a customer then don’t do anything about until the customer complains then getting the sack is possibility.
        In the private sector company directors and CEO who are in breach of legislated requirements of the corporation ACT or other legislation that governs their industry can face jail time.

  6. @Bob:
    “Why should public servants, who I pay via my taxes, be entitled to spend their time avoiding requests for the transparency which is supposed to be Government policy.”

    – Oh, this is obviously what they are doing, Bob. And sure, all public servants are evil conspirators working with those nasty govenments who are clearly out to get anyone who isn’t in poilitics or a business leader…

    “If a Department doesn’t comply with an FOI request without reasonable cause then the Department Secretary and the responsible FOI officer is automatically sacked and if a court is satisfied that the delay in providing the information is not reasonable then both parties should be locked up for a period of up to five years.”

    – Yeah, thanks for the input Mr Hitler. Are you entirely sane? I can just imagine that people like yourself would then use this as an opportunity to inundate departments with FOI requests so that all the staff were arrested if you (boo hoo) didn’t get your way. You are a bitter old man Bob.

    @ GongGav:
    “What do you do for a job Bob?”

    – Make whine?

  7. To those who are complaining that it’s unfair to sledge AGD on this issue because it has an employee on legitimate leave, I will point out:

    It seems to me that by not meeting its legislatively imposed deadline, AGD runs a fair risk of breaking the law. And the law does not care whether someone is on holiday or not.

    That deadline itself was imposed by the terms of the FoI legislation — it wasn’t arbitrary. AGD can’t just choose a deadline — the deadline is imposed by the law itself.

    • Whether failing to meet the deadline or not breaks laws is an interesting point Renai. In this case, I dont know if it does or not. I know with my job, if we fail to meet certain timeframes then there are rights and consequences, but that doesnt necessarily mean sanctions against me or the department.

      We have our charter standards, which say what we aim to do. Most of the time those standards arent tied to legislation (some are, like a lot of my work), but they are still taken very seriously. And because they are written down, we are bound by them so they couldnt be ignored even if we wanted to. FYI our standards were introduced at our initiative.

      With our standards, there is a gap recognising that not every case is going to get done on time. Arbitrary deadlines simply cant be met 100% of the time. And once you work on a percentage, an individual case loses some meaning

      I’m not saying its acceptable, dont get me wrong – its not. But there is plenty here not being said. When was AGD closed? Was Molloy himself (or the relevant person) contactable at the time? Were there issues with Australia Post? And for those reasons amongst others, I see Molloy’s reaction as little better than what Turnbull and Abbott have tried to get away with when arguing against the NBN – it sensationalises the issue beyond where it should.

      • > When was AGD closed?
        This is stated in the emails, and not relevant to the legislated extension period expiring. A further extension could have been arranged long beforehand.

        > Was Molloy himself (or the relevant person) contactable at the time?
        Obviously yes.

        > Were there issues with Australia Post?
        This couldn’t have less to do with anything.

        Stop arguing the line of sensationalism and distracting from the real issue. I’m asking that legislative requirements be met. The AGD knows perfectly well the requirements it has to follow under the Freedom of Information Act 1982, and chose not to. Let’s not forget that I made the request in October, and the FOI period had already had been extended once.

        It’s not sensationalism to expect public servants to follow the same laws that the rest of us are expected to follow. Stop making excuses for your colleagues.

        • You’re correct, its not sensationalist to expect public servants to follow the same laws. But you wrote on January ONE!!! One day after the stated date and a public holiday to boot. What do you THINK the response was going to be?

          Did you really think a response was going to be delivered on that date if he emailed a complaint? Did you NOT know the department was closed on a public holiday?

          Again, missing the deadline isnt acceptable (and I’ve repeatedly stated that), but neither is the expectation of demanding a response on a public holiday. I can only come to the conclusion you knew what the response would be.

          And you’re far better than that.

          We deride other Politicians of trying such tricks, why is it acceptable here?

          I believe in what you and the Pirate Party are trying to do Brendan, I really do. But you dont need to resort to cheap tricks to make headlines, your party beliefs and approaches should do that well enough.

          If you think thats defending colleagues, so be it. I’m not, but I doubt you’re going to change that opinion.

          • I think the point is that he was expecting a reply at any time before the deadline, perhaps before the holidays or when ever it suited. It could have been another extension based on the time of year, or if the staff member had the time the request could have been fulfilled or formally denied with a reason. Untill the deadline is passed, its not fair to report anything. Once it has, and the request is automatically denied because of this then we, the people who care about our country need to know.

        • I should also add that I really do want you to get the information you’re aiming for. This IS a serious issue, and transparency is highly important. Look around the site for other comments I make, and you’ll see I have similar concerns to you about the matter.

  8. It may be breaking the law. It may be unacceptable.

    As long as he keeps on it, there won’t be an issue though. They have, essentially, acceded to providing for the request, albeit with the proviso no private parties object. So he’ll get the info.

    It’ll just be delayed by a few weeks. I understand the frustration and ridicule behind what was obviously a poor time to make a deadline….but it’s the government….

    That’s not an excuse….just life.

    • >> As long as he keeps on it, there won’t be an issue though. They have, essentially, acceded to providing for the request, albeit with the proviso no private parties object. So he’ll get the info.

      Given they have set up a reason (‘private parties’ ) and previous examples (see Ben Grubb’s articles) I expect it is highly unlikely that they will release much.

      He might get a reply, but it’ll be covered in black-out.

      • @Steve

        Possibly. Most likely actually. But as Renai said, par for the course.

        FOI doesn’t mean the public just get whatever info they want. Shame, but that’s how it works. Companies would never sit and talk with government if that was the case.

  9. If someone is wound up so tight with protocol, openness and transparency – would they give me the courtesy and now explain in this open forum why my previous comment has been removed….

    • @Real World Issues:

      Delimiter comments policy:

      Comments which constantly change the subject to off-topic subjects, often in self-promoting areas. Occasional off-topic stuff is completely fine, but if commenters are constantly trying to push an agenda not related to the current topic of discussion, that will become a problem.

      Your opinion is this isn’t important. That isn’t relevant to the conversation and stifles discussion. We’re not talking about if FOI on tech issues is important in perspective. We’re talking about the validity of the FOI request missing the deadline for response.

      That’s why it was deleted I’d say.

  10. @ Seven TechThank you for your reply – however I do have issues with it –
    Firstly – your comment “comments which constantly” – my response – this was my first comment, not constantly…
    Second point – self promoting – fortunately I am not a child who was used in the sex industry nor kidnapped into the LRA in Uganda..
    Thirdly – My comment could stifle discussion! .. are you could have left my short post and in the big world of the internet or your web page would not use up space or hold up discussions for those who what to talk about your topic.
    Thirdly – Yr comment – Tha’ts why I say it was deleted, I’d say – Could I have a response from the person who deleted it – and if it was you say so…

    • @Real World Issues

      I’m not going to comment on it anymore, because I’m not the moderator, Renai is. If he chooses to delete a comment like that because he deems it breaches rules he set out, that is his business. He knows we make it clear when we disagree with him.

      I don’t disagree in this instance- we are speaking of FOI requests about a tech related topic. Whether the topic is “the right perspective of real world issues” is not relevant to us. This is a tech website- if you think we are speaking of trivial issues, why are you commenting here?

  11. @seven tech – Thank you for the wake up call for me not waste any more of my time -in hindsight it was scarey being drawn into your website….

    • Yeah, don’t you hate it when you post a comment on a website and the owner deletes it because they don’t feel it adds to the discussion they’re hosting and paying for?

      Actually, I have no idea if I’ve ever been moderated. I’ve posted plenty of comments here over the last year or two, but often it’s of a fire and forget nature, and I have no idea what I wrote yesterday.

  12. “On January 1 2013, with the documents not having been supplied, Molloy wrote back to the deoartment”

    I think that should be “department” Renai.


  13. The law is the law regardless of who is on holiday. To give that excuse shows what is just exceedingly poor Management.
    The Parliament has ratified the law according to FOI. The Government HAS to conform with the laws of land. It also has to conform with it’s signed Human Rights Charter in full or what is the purpose of such documents if it can be taken as law only when it suits certain individuals. I would say they have a case to answer on numerous grounds. Why is no one initiating a case. Is it because of fear? If so, why are we tolerating it. Democracy should never tolerate such threatening behavior by it’s Government, or it is no longer a Democracy but more akin to a oligarchic or/and Plutocratic Institution which would be outside of the Constitutional organizational structure of our Constitution. Where is the High Court? Sad they have not acted yet. Or is it they are not allowed to? Why is no one asking the question?
    In a nutshell, why are Elected Representatives actively thwarting the very Public’s best interests? I would say that is that they are actively seeking to reverse their Constitutional roles as Representatives of the People and instead reversing the roles that we are the Representatives of their will. Which is it? You cannot have it both ways? Or has the interpretation of our Constitution been changed without our knowledge.
    Finally, if your Representatives are behaving in a manner not conducive to your happiness and future well being in this Nation, why are you continuing to vote these people into the Parliament. Is it because MSM tells you it is all you can do? If you believe that you only have two choices, more the fool you are. Vote for someone else. A vote above the line proxies your vote to someone else. Stupid Voting system. Bring in Proportion Representation to the Lower house. It is a excellent proven way to halt excesses of power. Works for the Senate brilliantly.

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