[Peetwo]

CASA take on metadata access & continued non-compliance of FOI Act -  

Kaz Casey - - has picked out a couple of relevant quotes from the IronBar book on legal weasel word confectionary (ie Aviation Law in Australia):

Quoting the 'Aviation Law Guru" Mr Ronald I C Bartsch from his book, Aviation Law in Australia (only Aviation Law book in Oz)...with the forward by no other than Mr Jono Aleck. How very bloody convenient. 

"The purpose of introducing these statutes relating to administrative bodies was to make the government more responsible to the people they were elected to serve. The underlying philosophy being that if decision-makers are held more accountable for their decisions then the "quality" of the overall decision-maker process should improve. To this end the enactments appear to have been a success." - I would suggest if you were in Dom's shoes, "accountability" and "quality" would come a distant 2nd last and last on descriptors for the nearly 8 yr embuggerance inflicted upon him by the CASA Sydney basin regional office - P2

I know, I know, he is talking out of his arse & teaching this shite in University. Might go to his next lecture, take a seat while he is wobbling his big head in front of his law students & ask a few questions, nice & LOUD.

Then regarding the FOI process, he states..

"The FOI Act 1982 creates a legally enforceable right of public access to documents in the possession of Commonwealth Ministers and authorities....Although there are some 18 grounds for exemption from release, the FOI Act is biased in favour of release. The intent of the Act is that, even if there is an applicable exemption, there should be release if at all possible unless to do so would create an unreasonable diversion of the resources of the agency to which the request has been made. There are specific provisions that prevent the disclosure of information relating to aviation accidents and incidents within the aviation regulations."

....Yeeeeah right.

Their job at the FOI department is too, well, um, process FOI's. Included in their budgets...

This statement...

"..there should be release if at all possible unless to do so would create an unreasonable diversion of the resources of the agency to which the request has been made.."

...has been in goodwill and somewhat informally embraced by the CASA FOI Officer David Gobbitt in his response to the DJ request's for information (reference: Carmody - Just Culture, Just’a Smokescreen.).

However as of 5 days ago DG has suddenly gone all formal on DJ's latest request for further information: Letter to Dominic James - sent 9-Nov-17-4
 

To continue on the subject of CASA and FOI requests - I note the following Richard Smith   'partially accepted' CASA FOI correspondence, with associated released document links, as published off the Right-to-know website:

From: Richard Smith

March 19, 2017

Dear Civil Aviation Safety Authority,

In 2015 the Commonwealth Attorney-General, under Freedom of Information, released a list of Government Agencies, Departments and Authorities that had applied for ongoing access to Telecommunication Data (phonecalls and internet browsing metadata) of Australians.

The Civil Aviation Safety Authority was present in the two lists released under the FOI release, having applied for access to both historical Telecommunications Data and ongoing Telecommunications Data of Australians.

I therefore request the following Government Information:

a) Documents relating to the CASA's consideration and decision to apply for ongoing access to Telecommunications Data as per the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;
b) The date of each Application made by CASA for access to Telecommunications Data under the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;
c) Documents relating to how CASA deals with the privacy of data obtained through access to ongoing access to Telecommunications Data as per TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979, including how the data received is obtained, assessed, stored and ultimately destroyed;
d) The number of documents containing data obtained by CASA through its ongoing access to Telecommunication Data; and
e) The number of documents containing data obtained by CASA through its ongoing access to Telecommunication Data that CASA has determined are not likely to be required for a permitted purpose and therefore has destroyed, for the period of time from since the commencement of ongoing access to the data was granted until 17th March 2017.

To assist you with your processing of your response, I am interested primarily in the following points, which I consider to be of significant public interest:

1) why the CASA thinks that it requires ongoing access to the Telecommunications Data of Australians, considering there appears to be very few legitimate reasons for ongoing access to phonecalls and internet browsing details of Australians in relation to CASA's role in regulating aviation safety; and

2) the scale of Telecommunications Data of Australians being obtained, handled, stored and ultimately destroyed by CASA.

If this can be answered as informal request, please do so.
Otherwise, please proceed with this as a formal request under the Freedom of Information principles & framework, i.e. the Freedom of Information Act 1982 & other associated guidelines and regulations.

Yours faithfully,

Richard Smith

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From: Anastasi, Adam
Civil Aviation Safety Authority

March 22, 2017

UNCLASSIFIED

Richard

Your email appears to assume the CASA has ongoing access to telecommunications data. I advise that CASA is no longer an enforcement agency under the Telecommunications (Interception and Access) Act 1979, by virtue of amendments to that Act by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (the Data Retention Act). Therefore, since 2015, CASA has not accessed telecommunications data for the purposes of its investigation because it has been unable to.

In light of that, please advise if you maintain your request for access.

Adam Anastasi Manager
Legal Advisory, Drafting and Procurement Section Legal Affairs, Regulatory Policy and International Strategy Branch Civil Aviation Safety Authority
p: 02 6217 1040

GPO Box 2005 CANBERRA ACT 2606
www.casa.gov.au

P2 comment - Do you get the impression that the CASA LSD were none too happy about losing their right to accessing metadata...  

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From: Richard Smith

March 22, 2017

Dear Adam,

Thank you for your replying to my request for Government Information of 19 March 2017.

May I take it that your response is a definitive official confirmation that since the commencement of the Data Retention Act, CASA has not reapplied for access to, nor received access to, Telecommunications Data of Australians?

If I assume the answer to my question above is in the affirmative, I consider the impact on my request for Government Information to be that it now covers a finite period of time where CASA accessed Telecommunications Data of Australians.

The narrowing down of the timeframe to a finite period does not materially invalidate nor change my requests for information, and I will address each one (a through e) in turn below.

My request part "a)"

"a) Documents relating to the CASA's consideration and decision to apply for ongoing access to Telecommunications Data as per the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;"

goes to CASA's decision making in considering the benefits of accessing Telecommunications Data of Australians and when the decision was ultimately made to apply for access to Telecommunications Data. I am sure that a Commonwealth agency wouldn't commence the application process under a legislative regime without consulting the Minister and without having the decision minuted in an executive meeting. This request for Government Information still stands.

My request part "b)"

"b) The date of each Application made by CASA for access to Telecommunications Data under the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979;"
is not limited to the situation at the present time. Since CASA had access to Telecommunications Data prior to the commencement of the Data Retention Act, this request needs no further elaboration. This request for Government Information still stands.

My request part "c)"

"c) Documents relating to how CASA deals with the privacy of data obtained through access to ongoing access to Telecommunications Data as per TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979, including how the data received is obtained, assessed, stored and ultimately destroyed;"

goes to the privacy controls that CASA maintained and operated under for the period that it had access to Telecommunications Data. This request for Government Information still stands.

My request part "d)":

"d) The number of documents containing data obtained by CASA through its ongoing access to Telecommunication Data;"

should now be a trivial matter of summing the number of documents that CASA obtained, considering that the period of time that CASA, having not reapplied for access, is now a finite period. This request for Government Information still stands.

My request part "e)":

e) The number of documents containing data obtained by CASA through its ongoing access to Telecommunication Data that CASA has determined are not likely to be required for a permitted purpose and therefore has destroyed, for the period of time from since the commencement of ongoing access to the data was granted until 17th March 2017
goes to the ultimate destruction of any documents obtained or produced during the finite period that CASA had access to Telecommunications Data. This request for Government Information still stands.

I trust that this clarifies the extent of my request, under FOI, for Government Information.

Yours sincerely,

Richard Smith

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: Anastasi, Adam
Civil Aviation Safety Authority

March 22, 2017

UNCLASSIFIED

Thanks. Yes, my email is confirmation that since the 2015 amendments, CASA
has not obtained access to data under the Act, because it was unable to.
 
As noted, from 2015, CASA could not obtain access to data. It could if,
under section 176A of the Data Retention Act, the Attorney-General
declared CASA to be an enforcement agency. I read item (a) of your request
to be seeking access to documents whereby CASA considered, and sought,
such a declaration. Please advise if that is not the  case.
 
In relation to items (b), (d) and (e), what timeframe are you seeking the
information for.
 
Adam

  
P2 comment - this is where this FOI request begins to get interesting...  

Adam,

Thank you for your quick reply.

In regards to the two queries in your reply of 22 March 2017, I address them below.

1. "I read item (a) of your request to be seeking access to documents whereby CASA considered, and sought, such a declaration. Please advise if that is not the case."
My request in item a) i.e.

"a) Documents relating to the CASA's consideration and decision to apply for ongoing access to Telecommunications Data as per the TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979";

is in regards to information allowing the public to see the decision making & associated justifications at the first point in time when CASA decided to access the phone records and internet browsing data of Australians.

I would imagine that this is in the form of a discussion paper or meeting minutes and subsequent request letter to the Attorney-Generals Department and would have been sometime during the 9 year period between 2006 to 2015.

2. "In relation to items (b), (d) and (e), what timeframe are you seeking the information for"

In regards to your query regarding requested timeframes for items b), d) and e), my current request in item b) applies to the entire time from when CASA began to obtain Telecommunication Data to when it ceased to collect Telecommunication Data.

Following on from that, it is inferred in my request items d) and e) that the period of concern is also the entire time from when CASA began to obtain Telecommunication Data to when it ceased to collect Telecommunication Data.

However, in considering the balance between the public's right to see the complete picture of data being collected and the practicality of searching records further back in time, I would not object to my request being narrowed to encompass only the period commencing 12:00am 1st January 2009 to the date of commencement of the Data Retention Act when CASA ceased to be an enforcement agency.

Yours sincerely,

Richard Smith

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From: Gobbitt, David
Civil Aviation Safety Authority

March 23, 2017

UNCLASSIFIED

Good morning Richard,

Thanks again for your enquiry.

I note your previous emails with Adam Anastasi, and in relation to your request for information, I provide the information below.

Firstly, I am unable to provide information for the time period 2009-10 and 2010-11, as the records are not readily available. To retrieve the requested information would entail checking every investigation conducted by CASA over a 2 year period to see whether a request was made for telecommunications data.

In relation to item (a), please see attached letter from CASA to the Attorney-General's Department dated 4 June 2015, seeking ongoing access to telecommunications data.
In relation to item (b), CASA made 0 requests for data in 2011-12, 4 requests in 2012-13, 0 requests in 2013-14, and 11 requests in 2014-15. No requests were made after the 2014-2015 year. I have attached documentation above regarding this, with the exception of 2012-13.

In relation to item ©, CASA uses restricted access technology to ensure that only authorised persons within CASAs investigations team have access to telecommunications data captured under the TIA Act. Only the relevant investigator and the head of CASA's Investigations team have access to the data collected in this manner. CASA complies with the Archives Act 1983 in its handling, storage and disposal of information.

In relation to item (e), as advised above, CASA complies with the Archives Act 1983 in the manner in which it handles the collection, storage and disposal of documents.

I'm unable to respond to item (d) as this would require a search of every investigation file. However, I am informed that, in general, the requests made in the past were phone call data and usually the data provided comprised 2-3 pages for each request.

Thanks again.

Regards

David Gobbitt A/g Freedom of Information Coordinator Legal Advisory, Drafting and Procurement Section Legal Affairs, Regulatory Policy and International Strategy Branch Civil Aviation Safety Authority
p: 02 6217 1281
GPO Box 2005 CANBERRA ACT 2606
www.casa.gov.au

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David,

Thank you for your quick reply.

I did not receive the attachment in relation to item (a). Could you please resend it.
I would also like to thank you for framing your answers in the spirit of the information I was after.

I will consider your response and revert to you shortly.

Regards,

Richard Smith

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From: Gobbitt, David
Civil Aviation Safety Authority

March 23, 2017

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201506041539.pdf
333K Download View as HTML

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UNCLASSIFIED

Hi Richard,

Apologies - please see attached as intended.

Regards

David Gobbitt A/g Freedom of Information Coordinator Legal Advisory, Drafting and Procurement Section Legal Affairs, Regulatory Policy and International Strategy Branch Civil Aviation Safety Authority
p: 02 6217 1281
GPO Box 2005 CANBERRA ACT 2606
www.casa.gov.au

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David,

Thank you for your assistance in this matter.

I have considered your response, and believe you have substantially answered the spirit of my request for Government Information.

As to the remainder of the items that you were unable to retrieve, I am satisfied that the effort required to go through historic incident investigations is excessive, compared to the incremental benefit it would add to the information that you have released.

I therefore consider this request for FOI closed.

Thanks,

Richard Smith

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From: Gobbitt, David
Civil Aviation Safety Authority

March 23, 2017

UNCLASSIFIED

Hi Richard,

Thank you for your reply, glad the information provided was helpful.

Regards

David Gobbitt A/g Freedom of Information Coordinator Legal Advisory, Drafting and Procurement Section Legal Affairs, Regulatory Policy and International Strategy Branch Civil Aviation Safety Authority
p: 02 6217 1281
GPO Box 2005 CANBERRA ACT 2606
www.casa.gov.au

 
This whole FOI request and correspondence exchange particularly perked my interest because I had been kept in the loop on a similar (ongoing) request for information on CASA's previous ability to access telecommunications data.

This request for information from CASA LSD came from Karen Casey as a DIP to the PelAir cover-up. Here was Dr Aleck's initial lengthy response to KC's request:

UNCLASSIFIED
Dear Ms Casey
 
When we spoke on the telephone on 3 August 2017, you raised concerns with me about advice you had received from your telephone service provider that electronic intercepts of data related to your use of your telephone occurred in the early months of 2015.  You said your provider advised you that they were not authorised to tell you by whom, or on whose behalf, those intercepts were made.  In your view, however, you said you believed it was, and could only have been, CASA that was responsible for this.
 
You told me you had recently sought to contact CASA’s then General Counsel, Adam Anastasi, about this, because it was your understanding that Mr Anastasi alone was in a position to authorise such action, on CASA’s behalf, at the time.  I said that may have been the case, but I that I would seek further information about the matter from Mr Anastasi in relation to this matter.
 
I reiterate, I was not, and am not, aware of any such action on CASA’s behalf to obtain access to your telecommunications records having occurred at any time, but that I would undertake to pursue your allegations.  As I advised when we spoke again on 29 August, I have now done so and provide you here with information about the results of my inquiries.
 
During the time with which you are concerned (‘early 2015’), CASA had conferred on the then Manager Investigations the authority to seek telecommunications data in accordance with the Telecommunications (Interception and Access) Act 1979 (the TIA Act).  On 19 June 21015, that authority was delegated by the Director of Aviation Safety, as an authorised officer under the TIA Act, to CASA’s General Counsel and Executive Manager of what was then the Legal Services Division.
 
Under the TIA Act, authorised officers of enforcement agencies were able to ‘authorise’ the release of telecommunications data to their agency where it is relevant to their investigative functions.  In effect, the exercise of this power operates as a request for telecommunications data from a telecommunications carrier such as Telstra or Optus.
 
CASA is no longer an enforcement agency under the TIA Act, by virtue of amendments to that Act by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (the Data Retention Act). Therefore, CASA is no longer entitled to use the processes under the TIA Act to access telecommunications data for the purposes of its investigations.
 
CASA has never had the power to intercept telecommunications.  Chapter 4 of the TIA Act governed access to telecommunications data. Enforcement agencies, such as CASA, could request access to ‘existing’ telecommunications data. ‘Existing’ telecommunications data is that data which exists as at the time on which the request is made. Meanwhile, criminal law enforcement agencies (which did not include CASA) could also request access to ‘prospective’ telecommunications data. ‘Prospective’ telecommunications data is that data that may be generated by the use of a telecommunications service, with a timeframe set from the data of the  agency’s request to a specified date in the future (to a general maximum of 45 days).
 
‘Existing’ data can be accessed for enforcement of the criminal law / administering a law imposing a pecuniary penalty / protection of the public revenue as similarly noted above, while ‘prospective’ data can only be accessed for the investigation of offences punishable by imprisonment by at least 3 years, or for ‘serious offences’ (which are extensively defined in section 5D of the TIA Act).
 
While rarely used at the time, enforcement agencies were previously able to apply to issuing authorities such as judges, magistrates and Administrative Appeals Tribunal members for Chapter 3 stored communication warrants. Such a warrant would enable the enforcement agency to obtain access to stored communications of a telecommunications service. Stored communications are defined in the TIA Act to be communications that had completed its passage over the telecommunications network and were stored on a telecommunications carrier’s equipment. This potentially included such matters as SMSs, voicemail message and stored emails.
 
Mr Anastasi has assured me that at no time did he authorise the disclosure of information, prospective or existing, under the TIA Act as it related to you, or to anyone else associated with the Pel-Air accident.  He is unaware of any action by the then Manager Investigations authorising such a disclosure, during the time that person held the relevant authority.  I have attached for your information a copy of the Telecommunications (Interception and Access) Act 1979 Annual Report for 2014-2015, which contains tables summarising applications for access warrants.  As you can see, there is no record of any applications having been made by or on behalf of CASA during the period with which you are concerned.
 
As I said when we spoke, I am unaware of any action by the then Director of Aviation Safety unilaterally exercising his authority under the TIA Act to obtain telecommunications data relating to you or anyone else associated with the Pel-Air accident.  We have queried the Director’s office, and I am advised that no such action appears to have been taken.
 
Would you like your query to be dealt with under the Freedom of Information Act?
 
If I understand your concerns correctly, I expect my assurances—based on the advice with which I’ve been provided—may not be as compelling as you might wish.  In the event, if you would like me to do so, I am happy to treat your query as a request under the Freedom of Information Act 1982 (FOI Act) for access to documents relating to any alleged exercise of authority, by or on behalf of CASA, to obtain access to your personal telecommunications (or records of those communications), during the period 1 July 2014 to 30 June 2015.  On this basis, more formal inquiries could be made of the relevant areas within CASA to identify any records of the kind that would necessarily exist if action of the kind you have suggested occurred.
 
If you would like me to instigate action under the FOI Act on your behalf—along the lines described immediately above or otherwise—please let me know as soon as possible and I will initiate that action.  In the meantime, please don’t hesitate to contact me if you have any further questions in relation to this matter.
 
Yours sincerely
 
Dr Jonathan Aleck
General Manager
Legal Affairs, Regulatory Policy & International Strategy (LARPIS)
Civil Aviation Safety Authority (CASA)
p +61 (0)2 6217 1600 | m +61 (0)407 018 818 | jonathan.aleck@casa.gov.au
16 Furzer Street, Philip ACT 2606
GPO Box 2005, Canberra ACT 2601, AUSTRALIA
www.casa.gov.au

          
Under different circumstances if I were KC I would feel extremely honoured and think I had obviously struck a nerve, if I was to receive such a lengthy response from Dr A.

However having read the collective CASA LSD response to the Richard (Dick??) Smith FOI request I am beginning to think there is more to this than meets the eye...  

Meanwhile taking a visit to the CASA FOI disclosure log webpage, I note that even Richard (Dick) Smith's insightful FOI request and associated correspondence is not considered worthy  of a mention by the Fort Fumble legal weasel services division...        

CASA's Freedom of Information Disclosure Log

Last entry - 9 September 2016 F16/4491 Seeking access to risk assessments for the changes to CASR Part 101 to determine any possible risk or hazard it would present to current aviation activities and the general public.

Last updated:  22 August 2017

MTF...P2