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
Our reference: FOI 004/16/17
Mr Stuart McCarthy
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr McCarthy
NOTICE OF DECISION ON REQUEST FOR REVIEW OF CHARGES
1.
I refer to your email, dated 5 July 2016, in which you requested access, under the
Freedom of Information Act 1982 (FOI Act), to documents relating to the AMI study of
tafenoquine in 3 RAR personnel returning from Timor Leste in 2000:
a. Correspondence between Defence and the Therapeutic Goods Administration (TGA)
relating to approvals for the use of tafenoquine, an unregistered drug.
b. The AMI study protocol.
c. Minutes of Australian Defence Mrdical Ethics Committee (ADMEC)/Australian
Defence Human Research Ethics Committee (ADHREC) meetings relating to the
approval, conduct and results of the study.
d. Reports of the study results.
e. Correspondence with academic journals relating to reports of the study results,
including submissions, reviews or rejections.
Liability to pay charges
2.
By letter, dated 12 July 2016, you were advised of the
decision, in accordance with
section 29 of the FOI Act, that you were liable to pay a charge for the processing of your request
and for giving access to the requested documents.
3.
The abovementioned letter also outlined that Defence excludes personal email addresses,
signatures, PMKeys numbers and mobile telephone numbers, contained in documents that fall
within the scope of a FOI request unless you specifically request such details and that Defence
also excludes duplicates of documents.
4.
By email, dated 14 July 2016, you sought a review of the charges associated with your
request on public interest grounds.
Decision maker
5.
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.
Defending Australia and its National Interests
2
Material taken into account
6.
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; and
d. the Guidelines published by the Office of the Australian Information
Commissioner.
Relevant legislation – subsection 29(5) of the FOI Act
7.
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
8.
As noted above, I am required to take into account whether access to the requested
documents would cause you any financial hardship.
9.
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.
10.
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):
3
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
11.
You did not provide any arguments or evidence relevant to a claim of financial hardship,
accordingly, I am satisfied that payment of processing charges would not cause you any financial
hardship.
Consideration of public interest
12.
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.
13.
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...
14.
Your email seeking waiver of the charges does not address how release of the requested
documents would be in the general public interest. You have made four points that are merely
statements about this matter, yet you have not made any claims about how this information
would contribute to public discussion.
15.
In your point a
. you state that
senior Defence officials including the ADF Surgeon
General have stated publicly that they are committed to full transparency in relation to this
matter. Without any further information I am satisfied that the public interest may already have
been served with the release of material on the Defence website. The website also provides
details for a dedicated contact point for individuals that may have queries or concerns to contact.
16.
I note that each of your points is linked to a news article, but this does not demonstrate
how access to the requested documents would be of benefit to a substantial section of the public.
Paragraph 4.55 of the guidelines state
the applicant should identify or specify the ‘general public
interest’ of the substantial section of the public’ that would benefit from disclosure. While I
acknowledge that this matter may be of interest to you personally, the matter ultimately relates to
a small section of the Army. It follows that this does not constitute a substantial section of the
public.
4
17.
The Guidelines, at paragraph 4.58, provide a non-exhaustive list of circumstances where
it may be appropriate to reduce or waive a charge on public interest grounds. I do not consider
that you have adequately addressed any of those points, nor provided any other arguments that
would convince me of your public interest claims.
Charges decision
18.
Taking the above into account, and given that you have not addressed how the requested
documents would be in the general public interest, I have had to take into account whether the
cost assessment is reasonable.
19.
The original estimate was calculated at 5 minutes per page for examining and 2 minutes
per page for redacting and/or preparing the documents for release. In this instance, as there are
approximately 100 pages of documents that require consideration, as well as external
consultation with a number of parties, I am satisfied that the charge is reasonable and for this
reason I have decided to impose the charges at the amount originally estimated of $270.00.
Way forward
20.
If you agree with my decision, and wish to proceed, a deposit of
$67.50 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 11 September 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.
Your Review Rights
Internal Review
14.
Under the provisions of section 54 of the FOI Act, you are entitled to request a review of
this decision. You must request a review, in writing, within 30 days of the date of this letter, or
the date you receive the documents. Requests can be sent to:
Email: xxxxxxxxx@xxxxxxx.xxx.xx
Fax: 02 626 62112
Post: Freedom of Information Directorate - Reviews
Department of Defence
CP1-6-029
PO Box 7910
CANBERRA BC ACT 2610
5
Australian Information Commissioner
15.
Under the provisions of section 54 of the FOI Act, you are also entitled to request an
external review of this decision by the Australian Information Commissioner. You have 60 days
to lodge such a request, using one of the contact methods below:
Email: xxxxxxxxx@xxxx.xxx.xx
Phone: 1300 363 992
Fax: 02 9284 9666
Post: GPO Box 5218
SYDNEY NSW 2001
Complaints
16.
You may complain to Defence, the Information Commissioner or the Commonwealth
Ombudsman about an action taken by Defence in the exercise of its power or the performance of
its functions under the FOI Act. There is no fee for making a complaint. Should you wish to
complain to the Department of Defence, your complaint can be addressed to Mr Tony Corcoran
using the contact details below:
Email: xxxx.xxxxxxxx@xxxxxxx.xxx.xx
Post: Tony Corcoran
Assistant Secretary Information Management and Access Branch
CP1-6-14
PO Box 7911
CANBERRA BC ACT 2610
17.
Contact details for the Commonwealth Ombudsman are below:
Phone: 1300 362 072)
Fax: 02 6276 0123
Post: Commonwealth Ombudsman
GPO Box 442
CANBERRA ACT 2601
18.
Contact details for the Information Commissioner are above.
Further advice
23.
Please contact me if you have any queries about your request.
Yours sincerely
Digitally signed by
xxxxxxx.xxxxxxx@xxxxxxx.xxx.xx
Date: 2016.08.12 16:09:58 +10'00'
Theresa Stinson
Assistant Director
Freedom of Information
12 August 2016
Enclosure:
1.
Payment Authorisation form - Deposit
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
FREEDOM OF INFORMATION REQUEST ‐ DEPOSIT AUTHORISATION
FULL NAME or ORGANISATION
Service or PMKEYS ID (if applicable)
POSTAL ADDRESS:
CONTACT PHONE NUMBERS:
H
M
B
EMAIL:
FOI REFERENCE :
FOI 004/16/17
AMOUNT $
$67.50
By signing this form you are agreeing to pay the charges notified to you by the Freedom of
Information Directorate. 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:
PLEASE DO NOT SEND CHEQUES OR MONEY ORDERS TO FOI
Once our office receives this form, the Department of Defence will generate an invoice in
order for you to make payment of the agreed charges via one of the payment options made
available.
Our office will not proceed to process your request until a receipt has been received in our
office notifying that the deposit amount has been paid.
Please sign below and return this form by one of the following:
via email to xxx@xxxxxxx.xxx.xx
via fax 02 6266 2112
by post to the address noted above.
Signature: ____________________________________________________
Defending Australia and its National Interests
