If not delivered return to PO Box 7820 Canberra BC ACT 2610
12 April 2017
Our reference: LEX 27827
Mr James Smith
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request – Charge decision
I refer to your request dated and received by the Department of Human Services (the
department)
on 26 February 2017, for access under the
Freedom of Information Act 1982 (the
FOI Act) to the
following:
‘I request all documents wherein the outcome of any enterprise bargaining ballots were
communicated to the department by the entity who undertook the ballots.
This shall include the YES/NO vote amounts or percentages as well as any additional
information related to the vote. For example, a breakdown of the vote by employee location,
or APS level.
The scope of this request covers any such documents that were received as a result of EBA
offers made to staff under:
Workplace Bargaining Policy 2015
or
Australian Government Public Sector Workplace Bargaining Policy 2014.’
Decision on charge
The following is my decision in relation to your request for non-imposition of the charge imposed
under the FOI Act (the
charge). I have decided to not to reduce the amount of the charge that was
notified to you.
The reasons for my decision, including the relevant sections of the FOI Act, are set out below.
Background
On 14 March 2017, you were notified that you are liable to pay a charge for the processing of your
request and advised that the preliminary assessment of that charge is $505.00, calculated as
follows:
PAGE 1 OF 6
Search and retrieval time: 3.8 hours, at $15.00 per
$57.00
hour:
Decision-making time (*after deduction of 5 hours):
22.4 hours, at $20.00 per hour
$448.00
TOTAL
$505.00
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is
reflected in the calculation.
On 18 March 2017, you provided the following response to the preliminary charge:
‘I contend the charges should not be applied on public interest grounds. The department of
human services has been mentioned in the media on this topic and the integrity of your
employees' private data and of the integrity of the EA ballot process is in the public interest.
Here is a link to the media articl
e. http://www.canberratimes.com.au/national/public-
service/fears-for-the-data-of-53000-more-public-servants-20170316-guzhhb.html’.
I note that the link you provided refers to an article published by
The Canberra Times on 17 March
2017.
What I took into account
In reaching my decision I took into account:
the department’s correspondence of 14 March 2017, notifying you of the charge;
your correspondence of 18 March 2017, contending that the charge should not be imposed;
documents falling within the scope of your request;
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.
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Department of Human Services
Reasons for decision
I note that subsection 29(5) of the FOI Act prescribes matters that I must take into account. My
consideration of those matters is set out below.
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 expressed or 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
Paragraph 29(5)(b) of the FOI Act provides that, without limiting the matters the 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 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.
Relevantly, paragraph 4.81 of the Guidelines states that:
“an applicant relying on s 29(5)(b) should identify or specify the ‘general public interest’ or
the ‘substantial section of the public’ that would benefit from disclosure. This may require
consideration both of the content of the documents requested and the context in which their
public release would occur”.
In addition, paragraph 4.80 of the Guidelines states that:
“…the public interest test for waiver in s 29(5)(b) is different to the public interest test in s
11A(5) that applies to conditionally exempt documents.”
I also note that paragraph 4.82 of the Guidelines provides:
“There is no presumption that the public interest test is satisfied by reason only that the
applicant is a member of Parliament, a journalist or a community or non-profit organisation. It
is necessary to go beyond the status of the applicant and to look at other circumstances.”
In your email of 18 March 2017, you state the following:
‘I contend the charges should not be applied on public interest grounds. The department of
human services has been mentioned in the media on this topic and the integrity of your
employees' private data and of the integrity of the EA ballot process is in the public interest.
Here is a link to the media articl
e. http://www.canberratimes.com.au/national/public-
service/fears-for-the-data-of-53000-more-public-servants-20170316-guzhhb.html’.
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Department of Human Services
I am not persuaded by these submissions. I note that you have not identified the ‘general public
interest’ or the ‘substantial section of the public’ that would benefit from disclosure of the
documents. While you note that the department’s enterprise agreement ballot process and the use
of employees’ data have been subject to media attention, you have not provided further details of
how release of the information you have requested would be in the general public interest, nor have
you identified that a substantial section of the public would benefit from the documents’ disclosure.
Further, even if the above specification had been made, I am not persuaded that there is significant
public debate and interest in the topics to which your request relates. There has been little further
media reporting on these issues since the article to which you referred us. While I accept that the
matter is potentially of interest to employees of the department, and perhaps to employees of other
departments with similar histories regarding enterprise agreements, I am not convinced that this
would be sufficient to establish a general public interest. Similarly, I do not consider it has been
established that a ‘substantial section of the public’ would benefit from the disclosure of the
documents.
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
Subsection 29(4) of the FOI Act provides a general discretion to reduce or not to impose a charge
which goes beyond matters relating to financial hardship and the public interest. In considering this
general discretion, I have had regard to whether the charge imposed appropriately reflects the cost
of processing your request.
With regard to whether the charge imposed appropriately reflects the cost of processing your
request, as outlined above, I consider that the calculation of the charge fairly reflects the work in
processing your request. I note that processing charges are designed to be a contribution to the
cost of processing FOI requests and do not compensate the full costs associated with the
processing of a request.
I note also that, in recognition of the general public interest in allowing access to government
information, the FOI Act provides for the first five hours of decision-making time to be free of charge
for all applicants. This discount was applied to the calculation of the charge notified to you on
14 March 2017.
I have also considered paragraph 4.88 of the Guidelines in relation to other grounds for reduction or
waiver. After reviewing the type of circumstances that may give rise to a reduction or waiver under
section 29(4), I do not find that the particular circumstances of your request are of a similar nature.
Conclusion
After considering your submission, along with the FOI Act and the Guidelines, I have decided to
neither reduce nor waive the charge that was notified to you.
Options to proceed with your request
In order for your request to continue to be processed, you are required to respond in writing within
30 days of receipt of this notice in accordance with one of the following options:
A. Pay the Charge (or deposit of $88.48);
B. Request a review of the decision to impose the charge; or
C. Withdraw your request.
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Department of Human Services
Further information on each of these options is set out below.
Option A – Pay the Charge
The amount due should be paid by cheque or money order and made out to the Collector of Public
Monies. Please quote reference number LEX 27827 with your payment.
Please send this cheque or money order to:
FOI and Information Release Branch
Legal Services Division
Department of Human Services
18 Canberra Ave, Forrest ACT 2603
If you elect to pay the reduced charge amount, please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx once you have posted your cheque or money order to
advise us of your payment.
Option B – Request a review of the decision to impose the Charge
Please find attached a document setting out your rights of review at
Attachment A.
Option C – Withdraw your request
If you wish to withdraw your request, you may do so in writing. Alternatively, you may wish to
consider narrowing the terms of your request. If the scope of your request can be reduced, the
charge may be recalculated accordingly.
Further Information
Should you have any enquiries concerning this matter, please contact me at
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx. Yours sincerely
Authorised FOI Decision Maker
FOI Legal Team
FOI and Litigation Branch Legal Services Division
Department of Human Services
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Department of Human Services
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of an FOI decision, you can contact us to discuss your request.
We will explain the decision to you. This gives you a chance to correct misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (FOI Act) gives you
the right to apply for a review of the decision. Under sections 54 and 54L of the FOI Act, you can
apply for a review of an FOI decision by:
1. an Internal Review Officer in the Department of Human Services (the department); and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who made
the original decision will carry out the review. The Internal Review Officer will consider all aspects of
the original decision and decide whether it should change. An application for internal review must
be:
made in writing
made within 30 days of receiving this letter
sent to the address at the top of the first page of this letter.
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons for
disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in the department within 30 days of
applying, you can ask the Australian Information Commissioner for a review of the original FOI
decision.
You will have 60 days to apply in writing for a review by the Australian Information Commissioner.
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Department of Human Services
