Freedom of Information
CP1-6-001
PO Box 7910
CANBERRA BC ACT 2610
Tel: 02 626 62200
Fax: 02 626 62112
xxx@xxxxxxx.xxx.xx
FOI 180/15/16
Ms Jane Quinn
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Quinn
NOTICE OF DECISION ON REQUEST FOR REVIEW OF CHARGES
1.
I refer to your request of 29 December 2015, which we received on 4 January 2016, in
which you requested access, under the
Freedom of Information Act 1982 (FOI Act), to:
I am requesting the original application documents, approved protocols and any
documented amendments relating to the ADHREC protocols numbered 249/01, 216/00 and
292/02.
Liability to pay charges
2.
By letter, dated 5 January 2016 you were advised that, in accordance with section 29 of
the FOI Act, I had deemed you liable to pay a charge for the processing of your request and for
giving access to the requested documents.
3.
By email, dated 6 January 2016, you sought a review of the charges associated with your
request on public interest grounds.
Decision maker
4.
By arrangements made by Defence under section 23 of the FOI Act, I am authorised to
decide on your request for waiver of the processing charges.
Material taken into account
5.
In coming to my decision, I had regard to:
a. your submission in support of remission of the charges;
b. the relevant provisions of the FOI Act;
c. the relevant provisions of the FOI (Charge) Regulations;
d. the Guidelines published by the Office of the Australian Information
Commissioner.
Defending Australia and its National Interests
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Relevant legislation – subsection 29(5) of the FOI Act
6.
Subsection 29(5) of the FOI Act provides as follows:
Without limiting the matters the agency or Minister may take into account in determining
whether or not to reduce or not to impose the charges, the agency or Minister must take
into account:
a. whether the payment of the charge, or part of it, would cause financial
hardship to the applicant, or to a person on whose behalf the applicant was
made; and
b. whether the giving of access to the document in question is in the general
public interest or in the interest of a substantial section of the public.
Consideration of financial hardship
7.
As noted above, I am required to take into account whether access to the requested
documents would cause you any financial hardship.
8.
The Guidelines provide the following advice:
Whether payment of a charge would cause financial hardship to an applicant is primarily
concerned with the applicant's financial circumstances and the amount of the estimated
charges. Financial hardship means more than an applicant having to meet a charge from
his or her own resources.
An applicant relying on this ground could ordinarily be expected to provide some
evidence of financial hardship. For example, the applicant may rely upon (and provide
evidence of) receipt of a pension or income support payment; or provide evidence of
income, debts or assets.
9.
When considering whether to waive a debt due to the Commonwealth, the Department of
Finance and Deregulation provides the following definition of financial hardship (in the context
of deciding whether to waive a debt):
Financial hardship exists when payment of the debt would leave you unable to provide
food, accommodation, clothing, medical treatment, education or other necessities for
yourself or your family, or other people for whom you are responsible.1
10.
In the absence of any such information in relation to your request I am not satisfied that
the payment of the charge, or part of it, would cause you any financial hardship.
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Consideration of public interest
11.
In relation to 'public interest
' considerations, Part 4 - Charges for providing access,
paragraphs 4.51- 4.53 of the Guidelines
state as follows:
4.51 The Act requires an agency or minister to consider 'whether the giving of access to
the document in question is in the general public interest or in the interest of substantial
section of the public' (s29(5)(b)). The issue is not whether it is in the public interest to
waive or reduce a charge, nor whether it is in the public interest for a particular
applicant to be granted access to a document ...
4.52 ... The FOI applicant may benefit from disclosure, but for the purposes of s29(5)(b)
there should also be benefit flowing more generally to the public or a substantial section
of the public. This will ordinarily require consideration both of the content of the
documents and the context of their release -for example, whether the documents relate to
a matter of public debate or decision by government.
12.
Part 4 - Charges for providing access, paragraph 4.56 of the Guidelines also states as
follows:
4.56 ... an agency or minister may also consider whether the range or volume of
documents requested by an applicant could be considered reasonably necessary for the
purpose of contributing to public discussion...
13.
Your email states
these documents will be used for academic research purposes, research
which is widely applicable to the general public. However, you have neglected to explain how
the requested material would be applicable to the general public.
14.
I note that the three protocols you refer to in your request relater to Malaria. In
considering your request for waiver, I turned my mind to Malaria in Australia and found that
Malaria was effectively eradicated in the early 1980’s. The New South Wales (NSW)
Government, in particular NSW Health make available a fact sheet relating to Malaria, in which
they advise that (in 2012) approximately 500 cases of Malaria are diagnosed in Australia each
year, it further explains that almost all are people who have travelled to Malaria affected
countries and didn’t take ant-malarial medications. It is my opinion that it therefore follows that
the wider Australian community would not routinely be prescribed the medication in
question and accordingly the material released would not generally or directly benefit a
substantial section of the public.
15.
I also took into account that the protocols that you have requested range from 2000 –
2002. I consider that the material would be considered a historical record and does not
necessarily portray current and contemporaneous research methodology.
16.
Finally, I have also taken into account that the research protocols were tailored to
operational Australian Defence Force use at the time of deployment to tropical or sub-tropical
areas.
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Other considerations
17.
I contacted the action area who would be responsible for the processing of your request to
discuss the estimate that was originally provided. The area advised that since providing the
estimate they had physically located the documents and found that there was well in excess of
100 pages of documents that would need to be considered. Further, the original estimate did not
take into account that formal third party consultation will be required.
Charges decision
18.
I took into account the guidelines at paragraph 4.58, which states that
the document is
required for research purposes for which no commercial benefit will flow to the applicant. Your
email stated that the documents would be used for academic research purposes, however you did
not address whether you expect to gain a commercial benefit. I also do not consider that you
have sufficiently argued that disclosure would be in the general public.
19.
Paragraph 4.11 of the guidelines state
agencies and minister’s offices should be guided by
the ‘lowest reasonable cost’ objective in the FOI Act. After taking all of the above into
consideration, I do not consider that the charge is prohibitive when I balance the processes that
will be required to be undertaken to process this request. Accordingly, I have decided to impose
the charge at $305.00 as originally estimated.
Way forward
20.
If you agree with my decision, and wish to proceed, a deposit of
$76.25 is required. The
deposit is not refundable except in some limited circumstances (for example, if Defence fails to
make a decision on your request within the statutory time limit), or may be refundable in part if
the final charge is less than the deposit paid.
21.
Please complete the authorisation form at Enclosure 1 and return it to the FOI Directorate
by 6 March 2016. Upon receipt of the form an invoice will be generated, which may take up to
five business days. Details about payment of the invoice are on the form. Our office will not
process your request until a receipt is received in our office notifying that the deposit amount has
been paid. If you do not respond to this letter within 30 days of receiving it (or by a later
deadline if we give you an extension), we will take it that you have withdrawn your request.
22.
Alternatively, if you disagree with my decision, you are entitled to apply for internal
review of my decision to impose the charges. Such an application should be made within 30 days
of receipt of this letter or such further time as the Department may allow. The fact sheet
“Freedom of Information – Your review Rights” is at Enclosure 2.
Further advice
23.
The Act may be accessed online at https://www.comlaw.gov.au
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24.
Please contact me if you have any question in relation to this matter.
Yours sincerely
Theresa Stinson
Assistant Director – Media Case Management
Freedom of Information
5 February 2016
Enclosures:
1.
Payment Authorisation form - Deposit
2.
Fact Sheet: Freedom of Information – Your Review Rights
