If not delivered return to PO Box 7820 Canberra BC ACT 2610
19 April 2017
Our reference: LEX 28561
Mr Justin Warren
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Warren
Freedom of Information Request – Internal Review Decision
I refer to your correspondence, dated 21 March 2017 and received by the Department of
Human Services (the
department) on that same date. You requested an internal review of
the decision made by a delegate of the department on 20 March 2017 (LEX 25282) under
the
Freedom of Information Act 1982 (the
FOI Act) (the
charges decision).
I am an authorised decision-maker under subsection 23(1) of the FOI Act to make internal
review decisions under section 54C of the FOI Act. My decision is set out below.
Background
The department received your original request on 14 January 2017 for access under the FOI
Act to the following documents:
' - The business case document(s) for the Pay As You Go (PAYG) data matching
initiative that is the subject of Question on Notice HS 15 from the Senate Community
Affairs Legislation Committee Budget Estimates hearing on 3 June 2015.
http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/clacctte/estimates/
bud1516/DHS/index
- Documents that describe the algorithm or process used to perform the data
matching that identified the "approximately 1,080,000" discrepancies between PAYG
data and data reported by DHS customers, as referred to in the Answer to Question
HS 15.
- Documents that describe the analysis process for how the value of "historical
discrepancies", as described in the Answer to Question HS 15, was determined. Such
documents should describe the statistical method, the sampling process used,
statistics returned (standard error, mean, confidence interval, etc.), how the likely
average debt value was determined, etc.
- [the final version of the Requirements Specification (or similar document)] containing
the program specifications/requirements used to define how the data matching
process should be implemented by programmers. Such [a document] would refer to,
for example, the use of certain fields to match on such as ABN, Business Name,
Customer Name, etc.
PAGE 1 OF 8
Where multiple revisions of documents exist, I am only interested in the version
current at the time the Department refers to in its answer to HS15.’
On 16 February 2017, the department issued you with a preliminary assessment of charges
involved in processing your request. The department also advised you in this
correspondence that 37 documents (totalling 355 pages) had been identified as falling within
the scope of your FOI request. In accordance with section 29 of the FOI Act, it was
determined that you were liable to pay an estimated charge of $600.00, calculated as
follows:
Search and retrieval time: 4 hours, at $15.00 per hour:
$60.00
Decision-making time (*after deduction of 5 hours): 27 hours, at
$20.00 per hour
$540.00
TOTAL
$600.00
On 16 February 2017, you wrote to the department by email, contending that the charge of
$600.00 be waived on the grounds that release of the documents is in the public interest.
On 20 March 2017, the department notified you of a decision in relation to the
reconsideration of the charges decision. The department also advised you in this
correspondence that it appeared that some documents were not within the scope of the
original request. Accordingly, the scope of the request was reduced to 13 documents
(totalling 287 pages) as falling within the scope of your FOI request. On this basis, the
department decided to reduce the assessment of the charge to $510.00, calculated as
follows:
Search and retrieval time: 2.4 hours, at $15.00 per hour:
$36.00
Decision-making time (*after deduction of 5 hours): 23.7 hours,
at $20.00 per hour
$474.00
TOTAL
$510.00
On 21 March 2017, you requested an internal review of the department’s decision to impose
charges for FOI request LEX 25282 on the following terms:
‘You have agreed that release of the documents would be in the public interest.
I do not accept your contention that, in order to waive the charges, release of the
documents must not only be in the public interest but must also "greatly inform public
debate".
You helpfully noted certain paragraphs of the OAIC Guidelines for agencies
interpreting the FOI Ac
t (https://www.oaic.gov.au/freedom-of-information/foi-
guidelines/). That has lead me to review the various cases linked in footnotes on that
page.
In 'CF' and Department of Finance [2014] AICmr 73
(http://www.austlii.edu.au/au/cases/cth/AICmr/2014/73.html), the Privacy
Commissioner found that "The threshold requirement for the public interest test under
s 29(5) requires identification of a general public interest or a substantial section of
the public whose interest the release of the documents may serve." There is no
requirement for the documents to also "greatly inform public debate". That is a much
higher threshold that you appear to have invented.
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Department of Human Services
Further, in MacTiernan and Secretary, Department of Infrastructure and Regional
Development (Freedom of Information) [2015] AATA 584
(http://www.austlii.edu.au/au/cases/cth/AATA/2015/584.html), The Administrative
Appeals Tribunal found that "an agency or minister should always consider whether
disclosure of a document would advance the objects of the Act, even though an
applicant has not expressly framed a submission on that basis. The objects of the Act
include promoting better informed decision making, and increasing scrutiny,
discussion, comment and review of the Government's activities (s 3)."
In its responses to this and many other requests for information the Department
appears to be working hard to avoid any and all scrutiny, discussion, comment or
review of its activities.
I hereby formally request an internal review of this decision.
On 21 March 2017, you further clarified the scope of your request stating:
‘Further to my last letter, I would also like to draw your attention to the following in
paragraph 4.74 of the Guidelines that you so helpfully referred to in your latest
correspondence:
"If an agency or minister accepts that disclosure of a document would be in the
general public interest or that there would be financial hardship to the applicant, it
may be difficult for it to justify why a charge has been reduced instead of waived in
full."
I do not believe the Department has justified why the charge should not be waived in
full.
I further note that in Australian Associated Press Pty Ltd and Department of
Immigration and Border Protection [2015] AICmr 65
(http://www.austlii.edu.au/au/cases/cth/AICmr/2015/65.html) the then Acting
Australian Information Commissioner, Mr Timothy Pilgrim, found that the charge
should be waived in full. Reference was specifically made to MacTiernan and
Secretary, Department of Infrastructure and Regional Development (Freedom of
information) [2015] AATA 584
(http://www.austlii.edu.au/au/cases/cth/AATA/2015/584.html), where the charges
were also waived in full.
The information I have requested has been described by the Department and the
government as a critical part of its efforts to recoup some $4 billion in overpayments
over the forward estimates. This is substantially greater than the amount of money at
stake in MacTiernan (a mere $1 billion), and the cost of processing this request is
substantially smaller.’
Internal Review Decision on charges
The following is my decision in relation to your request for reduction or waiver of the charge
imposed under the FOI Act (the
charge). I have reviewed the Charges Decision and made a
fresh decision on your request. In this regard, I have decided, under section 54C and
subsection 29(8) to impose the charge.
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Department of Human Services
You are therefore liable to pay the processing charge of $510.00.
The reasons for my decision, including the relevant sections of the FOI Act, are set out
below.
Information Considered
In reaching my decision, I took into account the following:
• the department’s correspondence of 16 February 2017, notifying you of the charge;
• your correspondence of 16 February 2017 contending that the charge should not be
imposed;
• the department’s correspondence of 20 March 2017, notifying you of the decision to
reduce the charge imposed;
• your correspondence seeking internal review of the department’s decision to waive
the reconsidered charge dated 21 March 2017;
• the contents of the documents falling within the scope of your request;
• the relevant provisions of the FOI Act;
• the
Freedom of Information (Charges) Regulations 1982 (the
Regulations); and
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (the
Guidelines).
Relevant legislation
Section 29(4) of the FOI Act provides that, where an applicant has notified an agency that
the applicant contends that a charge should be reduced or not imposed in relation to a
request under the FOI Act, then the agency may decide that the charge is to be reduced or
not imposed.
Section 29(5) of the FOI Act provides that, without limiting the matters that the agency may
take into account when making a decision about whether to reduce or not impose a
processing charge, the decision maker must consider:
• whether payment of a charge, or part of it, would cause financial hardship to an
applicant; and
• 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.
Section 29(8) of the FOI Act provides that, if an applicant makes a contention about a charge
as mentioned in subsection 29(4) and the agency makes a decision to reject the contention
in whole or in part, then the agency must give the applicant written notice of the decision and
the reasons for the decision.
Calculation of the charge
On review of the documents falling within the scope of your request, I confirm that the
department originally identified 37 documents (totalling 355 pages) as falling within the scope
of your request. On 20 March 2017, the department confirmed that the documents falling
within the scope of your request was further reduced to 13 documents (totalling 287 pages)
as part of the reconsidered charges decision.
I note that the assessment of charges was based on the time taken in processing these
documents.
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Department of Human Services
Waiver or reduction of the charge
I am not satisfied that the department should reduce, or waive the charges imposed under
the reconsidered charges decision, on the following basis:
• you have not provided any evidence of financial hardship;
• the documents would not assist members of the public in debate or discussion; and
• you have not put forward other relevant considerations that sufficiently weigh in
favour of reducing, or waiving the charges.
Financial Hardship
Paragraph 29(5)(a) of the FOI Act provides that, without limiting the matters an agency may
take into account in determining whether or not to reduce or not to impose the charge, the
agency must take into account whether the payment of the charge, or part of it, would cause
financial hardship to the applicant.
I note that you have not provided any evidence to indicate that payment of the charge would
cause financial hardship. On that basis, I have not considered this matter further.
Public interest
In making my decision, I am also required under paragraph 29(5)(b) of the FOI Act to take
into account whether the provision of access to the documents that are the subject of the
request, is in the general public interest, or in the interest of a substantial section of the
public. In other words, there must be a benefit flowing generally to the public or a substantial
section of the public from disclosure of the documents in question. This requires me to
consider the nature of the documents and the context of their release.
The Guidelines at 4.81 state that in considering the public interest, matters to be considered
include whether the information in the documents is already publicly available, the nature and
currency of the topic of public interest to which the documents relate, and the way in which a
public benefit may flow from the release of the documents.
I am not satisfied that there are compelling reasons in favour of reducing or waiving the
charge, because providing access to the documents is contrary to the public interest as their
release would, or could reasonably be expected to, have a substantial adverse effect on the
proper and efficient conduct of the operations of an agency. This is because the documents
contain material concerning certain compliance and audit processes in relation to the Online
Compliance Intervention. The release of the documents would adversely affect and
compromise the department’s ability to undertake audit and compliance activities.
In
‘IN’ and Australian Taxation Office [2016] AICmr 33 (the
IN decision), the then Acting
Australian Information Commissioner agreed that release of documents containing certain
processes used by the ATO when conducting audits:
• could reasonably be expected to make it more difficult for the ATO to undertake audit
activities generally; and
• have a substantial adverse effect on the proper and efficient conduct of ATO
operations.
In my view, the
IN decision applies in relation to the documents that are the subject of the
request, in that there is a public interest in protecting the confidentiality of the department’s
compliance activities. Therefore, release of the documents would be contrary to the public
interest.
PAGE 5 OF 8
Department of Human Services
Further, while I accept that the Online Compliance Intervention has been the subject of
media attention, consideration of the public interest is not primarily concerned with curiosity
or commentary. The primary question is whether a benefit will flow to the public generally or
a substantial section of the public from disclosure of the information in the documents.
I note that since the department received your initial request, there has been a significant
increase in the amount of information that is now in the public domain. For example, the
Online Compliance Intervention was discussed before the Community Affairs Legislation
Committee Estimates (a transcript is availabl
e here). The department has also made its
submission to the Senate Community Affairs References Committee Inquiry on the design,
scope, cost-benefit analysis, contracts awarded and implementation associated with the
Better Management of the Social Welfare System initiative. The department’s submission is
available vi
a this page.
In my view, the information contained in the documents (insofar as their disclosure is not
contrary to the public interest) already substantially exists in the public domain, and the
release of the full documents would not substantially contribute to the public debate, in a way
that would justify reducing or waiving the charges above.
In summary, I am not satisfied that you have identified the ‘general public interest’ or the
‘substantial section of the public’ that would benefit from disclosure of the documents. I
contend that the charges have been set at the lowest reasonable cost noting that they have
already been reduced.
In light of these factors, I have decided that there is no public interest in reducing or waiving
the charge.
Other grounds for reduction of the charge
In deciding whether charges should be reduced or waived, I have taken into consideration
section 29(4) of the FOI Act which provides a general discretion to reduce or not to impose a
charge which goes beyond matters relating to financial hardship and the public interest.
I note that you have not provided any evidence to indicate that the charges should be
reduced or waived on other grounds. On that basis, I have not considered this matter
further.
Conclusion
In conclusion, I consider the department have been correct in their assessment of the
charges required in processing your FOI Request 25282. On this basis, I have decided not
to reduce the amount of the charge that was notified to you. Accordingly, the charges
imposed for the FOI Request 25282 should remain at $510.00 and no reduction or waiver will
apply.
In going forward, no further action on the request will be undertaken until the charges
imposed for FOI Request 25282 have been received by the department. After this has
occurred, the department will be in a position to continue processing your FOI request.
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Department of Human Services
You can ask for a review of our decision
If you disagree with any part of the decision you can ask for an external review by the Office
of the Australian Information Commissioner. You do not have to pay for reviews of decisions.
See
Attachment A for more information about how arrange a review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Lisa
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
PAGE 7 OF 8
Department of Human Services
If not delivered return to PO Box 7820 Canberra BC ACT 2610
Attachment A
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The
Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of
this decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this
decision by the Information Commissioner.
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can
lodge your application in one of the following ways:
Online:
www.oaic.gov.au Post: GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
An application form is available on the website at www.oaic.gov.au. Your application should
include a copy of the notice of the decision that you are objecting to (if one was provided),
and your contact details. You should also set out why you are objecting to the decision.
Complaints to the Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise
of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 8 OF 8
