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Tuesday, April 28, 2015

Vietnam vet with a good cause enters difficult territory with broad FOI applications

In Q&A on ABC last night questions were raised about government policy regarding veterans pensions, drawing acknowledgement from panelists including former Deputy Prime Minister Tim Fisher that more has to be done to get things right. 

As reported in The Australian Vietnam veteran Don Tate also "questioned the faith Australians could place in accounts of the nation’s military history. He claimed a number of omissions by The Australian War Memorial, including the existence of one platoon he fought in, had led to further stress over the subsequent years."
Private Don Tate, Vietnam-ABC 7.30 Report

Mr Tate referred to Administrative Appeals Tribunal Freedom of Information proceedings in which the Australian War Memorial refused him access to information sought about the "D&E Platoon” in which he served, and claims by others in the light of the secrecy that he had lied about his participation in the Vietnam War.

The decision he referred to is Tate and Director Australian War Memorial [2015] AATA 107
handed down by Deputy President Tamberlin in February. 

The Tribunal upheld the agency decision that the work involved in dealing with two applications by Mr Tate would involve substantial and unreasonable diversion of resources. The evidence was that one application would require at least 150 hours of processing time after taking into account the work involved in producing 90 documents already furnished to the Applicant and at least 48 hours for the second application.

(The issue about the D&E platoon seems to be whether it existed as a discrete unit. It has been widely canvassed previously.)

I'm sympathetic to Mr Tate's cause, the more so as he represented himself in the case, up against the Australian Government Solicitor's office, but the Tribunal decision on substantial and unreasonable diversion of resources appears sound. 

All inclusive applications unbounded by time periods such as these (see below) will always raise the substantial and unreasonable diversion of resources question. Mr Tate declined the opportunity to narrow his applications other than exclude his own correspondence when properly consulted about ways the requests might be revised in an attempt to remove the practical refusal reason.

The FOI act (s 24AA (3)) provides that in deciding such matters no regard is to be had to any reasons that the applicant gives for requesting access so Mr Tate's submissions in this regard were not considered.

Here are examples of how to run into difficulty if FOI requests are framed in the broadest catch all terms, difficulties that arise even before the agency dives into the exemption provisions:

Mr Tate sought access to:
  1. all documents referring to the 2nd D&E Platoon matter, including:
    • any correspondence between Steve Gower and the following: Robert Buick; Keith Joseph Tennent; and James Fergusson Thomson in which my name, “Don Tate” is used, or any mention of “AVM” or “ANZMI”
    • any correspondence between Peter Cosgrove and Robert Buick; Keith Joseph Tennent and James Fergusson Thomson referring to “AVM”; or “ANZMI”
    • any correspondence between the following in which there are references to “Don Tate”, the “2nd D&E Platoon” matter:
      • Steve Gower and Bruce Billson;
      • Gower and Cosgrove;
      • Gower and Ashley Ekins
      • Ekins and Billson
      • Ekins and Mike Kelly MP (or a representative of his office)
    • any correspondence in which there are references to your donated films to the AWM; and/or any reference to the “AVM”
  2. the Roll Book for HQ Company 1ATF (May-June 1969) - provided
  3. the Roll Book for 4RAR (1969); - not available
  4. the Roll Book for 9RAR (1969); - not available
  5. the document titled: Australian Force Vietnam (Army Component) Order of Battle/Personal Staff Table from Army Headquarters, Directorate of Staff Duties - provided
  6. Correspondence to the Memorial regarding Mr Don Tate or his service from 1/1/2004 to the present by:
    • - Gary McKay
    • - Brian Avery
    • - ‘Mowgli’ or Ernest Brendon-Cremer,
    • - Robert Buick
    • - James Fergusson Thompson
(Emphasis added.)

And in his second application:
I also now formally request the following documents:
- copies of any and all correspondence in which my name is mentioned in ANY capacity by EVERY individual (including the likes of General Cosgrove, Gary McKay, Fergus Thomson, former Governor-General Jeffreys, Robert Buick, Mark Cunliffe, Keith Tennent, Bob Coker, Alan Price, any officer of Wrightways, any officer of the DVA, Bill Houston; Alf Garland, Gary Moseley, Ernest Brandon-Cremer, Robert Gibson, Arthur Clive Mitchell-Taylor, Ted Colmer, any administrator or ‘moderator’ of the AVM and ANZMI web sites; any officer of the NAA, any officer of the AFP, Robert Lee, Steve Gower, Ashley Ekins, and Bruce Billson MP)
- where such information has been paid for, copies of all receipts, bank accounts.
Evidence from the War Memorial about what would be involved in processing the applications:

  1. Ms Patterson has examined the collection of documents identified in response to the informal request of the Applicant in December 2012 which had not been furnished to the Applicant on 5 August 2013. She notes that, excluding correspondence to and from the Applicant, there were 235 documents comprising a total of 1,003 pages. From her examination she says that at least half the documents contain a significant amount of personal information about other individuals identified as Vietnam veterans. This personal information is interspersed throughout the documents and often many individuals are discussed in close proximity in the same document. Furthermore, the documents include correspondence with government departments including Defence and Veterans’ Affairs, the Minister for Veterans’ Affair, the office of the Minister for Defence Science and Personnel and a parliamentary committee. They would need to be consulted. The documents also contain references to legal advice and records of internal deliberations which would call for consideration and examination in detail to decide whether they could be the subject of a privilege claim.
  2. The affidavit of Ms Patterson states that in relation to the Applicant’s FOI requests the Respondent would need to carry out a process commencing with a series of steps to locate documents and decide whether they come within the descriptions in the formal requests.
  3. A preliminary search has been made of the Respondent’s databases using the name of the Applicant and the platoon and the search results revealed the existence of numerous files and matches of the search terms in the Respondent’s SharePoint database. For example in relation to the “2nd D&E platoon” in Vietnam there were 17 files and 3,600 matches in the SharePoint database.
  4. A search of all shared drives and electronic libraries on the Respondent’s computer systems would need to include records and documentation from a number of sections, including the Research Centre, Military History, Photographs, Film and Sound, Collections Services and the Executive requiring extensive IT assistance. It would also be necessary to examine the email inboxes of all staff. In order to search the Respondent’s offices for hard copy documents there would be a need for a detailed search of nine office spaces and an examination of all records located.
  5. The Affidavit points out the searches would need to be very comprehensive because the request was extremely broad and general in many respects encompassing “any document” which names the Applicant, for example.
  6. After completion of these searches there would need to be extensive work in assessing the documents for release, including examining documents for relevance, undertaking third party consultations with individuals and with the Respondent’s technical staff. These examinations would require consultation with staff with specialist knowledge about conflicts. Such staff members are currently significantly busy preparing the Memorial’s contribution to the Centenary of ANZAC and First World War commemorations. In addition, it would be necessary to consult with Ministers and other government departments whose information is likely to be contained in a number of the documents in issue. It would be necessary to consult with the former Director of the Memorial who had a personal involvement in the engagement with the Applicant during his directorship. It would be necessary also to consider issues involving technical considerations as to personal information and other exemptions under the FOI Act.
  7. It would then be necessary to prepare a decision probably including a large number of redactions to documents prior to release to the Applicant having regard to the extensive amount of personal information concerning numerous other ex-servicemen said to be connected with the platoon.
  8. Ms Patterson states that the work involved in carrying out these consultations would take numerous Memorial employees away from normal duties and delay other project work, including high priority matters concerning the extensive ANZAC and First World War Commemoration commitments this year.
I had a quieter war than Private Tate.


  1. Don Tate1:45 pm

    This whole matter revolved around the deletion of the 2nd D&E Platoon from all the records of the war- and who was responsible, and why. Veterans have every right to seek out documents that impact their service histories. The AWM failed to honour that obligation citing time constraints which were dubious at best, given that they had already accessed and compiled and analysed the 235 documents (1002 pages).
    No- the real reason the AWM refused to release those documents was because they would reveal a disgraceful cover-up of atrocities that occurred on May 30th 1969 involving a combined armour/infantry force that included the '2nd D&E Platoon'- NOT the 'D&E Platoon'.
    It was a disgraceful cover-up that has resulted in the falsification of historical accounts, the corruption of documents, and abuse of the men involved via an orchestrated campaign of slander emanating from Defence bureaucracies.
    That the AWM needed to rely on the foremost lawyer in the Commonwealth Government Solicitor's office to defend its decision (at taxpayers expense) make s a mockery of freedom of information.
    That the AAT then affirmed the decision of the AWM was simply the 'establishment' protecting its own.

  2. Thanks Don, As I said in the post I'm sympathetic to your cause to expose what may be a cover up. But I'm afraid the law provides for knockbacks when applications are broadly framed and that's what you ran into in this case. The chances of success are enhanced when the application is tighter than "all and any documents......."

    Best wishes