If not delivered return to PO Box 7820 Canberra BC ACT 2610
13 June 2017
Our reference: LEX 29683
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 14 May 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 19 April 2017 (LEX 25282) under the
Freedom of Information Act 1982 (the
FOI Act) (the
internal review (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
On 14 January 2017, the department received your freedom of information request
(LEX 25282) in the following terms:
' - 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.
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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 6 February 2017, following a request consultation process with the department under
section 24AB of the FOI Act, you revised your request as follows:
' - 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
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 contacted you to advise that 37 documents (totalling
355 pages) had been identified as falling within the scope of your FOI request.
Consequently, the department advised that you are liable to pay a $600.00 processing
charge, in accordance with section 29 of the FOI Act, 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 contacted the department to contend that the $600.00 charge
should be waived on the grounds that release of the documents is in the public interest.
On 20 March 2017, the department wrote to you to provide a decision in relation to your
request for reconsideration of the charge. In this notice, the department advised that some of
the documents included in the calculation of charges as set out in the letter dated 16
February 2017 were not in fact within the scope of the request. Accordingly, the number of
identified documents falling within the scope of your FOI request was reduced to
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Department of Human Services
13 documents (totalling 287 pages). On that 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 Act
(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.
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 the same date, you further clarified your submissions as follows:
‘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:
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Department of Human Services
"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.’
On 19 April 2017, the department notified you of the internal review (charges) decision,
namely that the decision-maker was not satisfied that the department should reduce or waive
the charges.
You decided to pay the charge in full and, on 5 May 2017, your payment was processed by
the department.
On 8 May 2017, the department provided a decision to you, refusing access to all documents
because they are subject to exemptions under sections 34 and 37(1)(b) of the FOI Act.
In this decision letter, the decision maker considered the actual cost of processing your
request, for the purpose of considering whether to adjust the amount of the charge under
Regulation 10 of the
Freedom of Information (Charges) Regulations 1982. It was found that
the actual cost of processing the request was more than the decision on the charge and as a
result, no adjustment was necessary.
Internal Review Decision on charges
Section 53A(e) of the FOI Act provides that where the department makes a decision relating
to the imposition of a charge or the amount of a charge, the decision can be subject to an
internal review.
As outlined in the background above, you previously sought internal review of the
department’s charges decision on 21 March 2017. The department provided the internal
review (charges) decision on this internal review on 19 April 2017.
Section 54E(a) of the FOI Act states that an Applicant cannot seek internal review of an
earlier internal review decision.
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Department of Human Services
On that basis, the relevant internal review decision regarding the imposition or amount of the
charges is already contained in the internal review (charges) decision dated 19 April 2017.
However, I note that under sections 54L of the FOI Act, you can apply for a review of this
decision by the Australian Information Commissioner.
Relevant legislation
Section 53A(e) of the FOI Act states that a ‘a decision under s 29 relating to imposition of a
charge or the amount of a charge’ is an access refusal decision which can be subject to
internal review.
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.
Section 54E(a) of the FOI Act states that part VI of the FOI Act, which relates to internal
reviews, does not apply in relation to ‘a decision on internal review’.
Conclusion
In conclusion, you have already sought internal review of the department’s charges decision
and the internal review (charges) decision was provided to you on 19 April 2017. Under
section 54E of the FOI Act, this decision is not subject to further review and, on that basis,
the department has no further submissions.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Sophie
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
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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 Australian Information Commissioner.
Australian 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.
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