If not delivered return to PO Box 7820 Canberra BC ACT 2610
21 June 2017
Our reference: LEX 28753
Mr Luke Bacon
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Bacon
Freedom of Information Request – Reconsideration of Charges
I refer to your revised request dated 4 April 2017 and received by the Department of Human
Services (the
department) on the same day, for access under the
Freedom of Information Act 1982
(the
FOI Act) to the following:
‘Could you please send through all documents, including correspondence, from the last year
(March 2016 - March 24 2017) that refer to the payment methods the Department accepts
for FOI requesters to pay charges.
Please exclude from the scope all FOI correspondence between requesters and FOI officers.
Exclude third party information, but still include correspondence with ministerial staff.
I am only interested in internal documents; and correspondence between department staff,
between staff and ministerial staff, and staff and 3rd parties.’
Background
On 24 April 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 was $414.80 (the
charge
notice). The charge was calculated as follows:
Search and retrieval time: 8.32 hours, at $15.00 per hour:
$124.80
Decision-making time (*after deduction of 5 hours): 14.5 hours,
at $20.00 per hour
$290.00
TOTAL
$414.80
*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 22 May 2017 you responded to the charge notice, contending that the charge should be
reduced.
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What I took into account
In reaching my decision I took into account:
the department’s correspondence of 24 April 2017, notifying you of the charge;
your correspondence of 22 May 2017, contending that the charge should not be imposed;
documents falling within the scope of your request;
consultations with departmental officers about:
o the nature of the requested documents; and
o the department's operating environment and functions;
relevant case law;
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).
Scope of documents
As a preliminary step in my consideration of whether a processing charge should apply to this
request, I have examined the calculations which were used to determine the charge.
The searches of the department’s records conducted at that time identified 38 documents, totalling
233 pages, which appeared to be within the scope of your request. On the basis of these searches,
the department determined that you were liable to pay a charge for the processing of your request,
in accordance with section 29 of the FOI Act.
In the course of reconsidering the preliminary estimate of charge, I reviewed the documents that
were originally considered. I determined that there were some documents included in the calculation
of the preliminary charge which, on further investigation, are not in scope of your revised request.
There are in fact 16 documents, totalling 93 pages, in scope of your request. I have re-calculated
the estimated charge as follows:
Search and retrieval time: 4.47 hours, at $15.00 per hour:
$67.00
Decision-making time (*after deduction of 5 hours): 7.09 hours,
at $20.00 per hour
$141.80
TOTAL
$208.80
The new estimated charge resulted in a lower amount than the preliminary charge. This is because
there are fewer documents than the preliminary estimate.
In reassessing the charge in relation to the documents, I have allowed two minutes to examine each
page for decision making and an additional three minutes per page depending on the estimated
level of redaction (either in full or in part) that would apply. I note that this is an estimate only and
should you proceed with this application, a final charge will be determined at the time of decision,
taking into consideration the actual number of pages released in full, released in part, or refused.
On this basis, I have decided to reduce the charge to $208.80. I am satisfied that this is the lowest
reasonable cost when considering the volume of documents involved and the significant amount of
work that would be involved in reviewing each document and making the necessary exemptions.
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Department of Human Services
I have also considered your submissions in considering whether to further reduce or waive the
reduced charge of $208.80. My considerations are discussed below.
Reconsideration of the charge – your submissions and other considerations
On 22 May 2017 you wrote to the department contesting the charge. The reasons you provided in
support of your contention that the charge be waived were:
‘I'd like to apply for reduction of the $414.80 fee on the basis of the strong public interest in
transparency of the department’s Freedom of Information process. The method of payment
for FOI request charges is an often overlooked but important aspect of the accessibility of
the FOI system. Some methods require people to have a credit card, other methods (like
money order) require additional fees on top of the FOI charges. These are barriers,
potentially reasonable or not, to people making FOI requests. There are important privacy
and security considerations that also feed into decisions about payment methods.
The public require access to our documents that refer to FOI payment methods in order to
understand and assess how the department makes decisions about them, so that they can
participate in modernising the [
sic] our public authority’s system.
As additional evidence that this request is intended for public benefit, rather than private or
commercial, I've made this request through righttoknow.org.au. All the documents will be
immediately public for everyone’s benefit.’
Section 29(4) of the FOI Act provides a discretion to reduce or not impose a charge. In making a
decision in relation to this discretion, section 29(5) requires me to consider:
whether payment of the charge would cause financial hardship to the applicant, and
whether giving access to the document is in the general public interest or in the interest of a
substantial section of the public.
The Guidelines state, at paragraph 4.71:
‘In addition to considering those two matters, an agency or minister may consider any other
relevant matter, and in particular should give genuine consideration to any contention or
submission made by an applicant as to why a charge should be reduced or waived’.
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 provided any evidence to indicate that payment of the charge would cause
financial hardship. On that basis, I have not considered this matter further.
The 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,
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Department of Human Services
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.
Furthermore, in
MacTiernan and Secretary, Department of Infrastructure and Regional Development
(Freedom of Information) [2015] AATA 584 the Administrative Appeals Tribunal found that where
release is in the general public interest, or in the interest of at least a substantial section of the
public, charges ought to be waived. Conversely, this decision also supports the view that where
there is little public interest in the release of information that is within scope, then it is appropriate for
the charges to be affirmed.
Paragraph 4.85 of the Guidelines also states that:
‘The decision in
MacTiernan and Secretary, Department of Infrastructure and Regional
Development (Freedom of Information) explains that an agency should compare the number
of documents within the scope of an FOI request and the cost of processing the request
against the subject matter of the request in deciding whether to exercise its discretion to
waive a charge on public interest grounds.’
I am not satisfied that the balance in favour of waiver of charges, which existed in
MacTiernan, is
present in this current matter. Unlike
MacTiernan, in which the amount of $2,291.36 in charges was
significantly less than the amount involved in the subject matter of the FOI request (namely a
proposed $1 billion plus taxpayer funded infrastructure project), the amount of the charge notified to
you is not significantly disproportionate to the potential amount involved in the subject matter of your
request.
To illustrate, the Office of the Australian Information Commissioners’ 2015-2016 Annual Report
shows that there was a total of $147,267.00 collected by Commonwealth Agencies and Ministers in
relation to FOI charges. The Department of Human Services collected $4,289.00 in that financial
year, representing less than 3% of the total amount of FOI charges collected. In addition, I note that
out of the 4,687 FOI requests received by the department in the 2015-2016 Financial Year, only
61 charges notifications were issued.
Furthermore, I am not satisfied that release of the documents would contribute to public
understanding of the reasons for the methods used by the department to collect and process money
on behalf of the Commonwealth in relation to FOI requests. The methods currently used by the
department are well-established, long-standing and uncontroversial arrangements for making
payments. There is sufficient information already available in the public domain in relation to the
subject matter of your request. For example, the charge notice issued by the department to each
FOI applicant, who is required to pay a charge, contains information on payment methods.
You also submitted that:
‘[a]s additional evidence that this request is intended for public benefit, rather than private or
commercial, I've made this request through righttoknow.org.au. All the documents will be
immediately public for everyone’s benefit.’
I acknowledge that the rightoknow.org.au website provides a useful mechanism for the public to
make FOI requests and allows correspondence and any documents to be published automatically.
However I am not persuaded that this sufficiently demonstrates the necessary public benefit that
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Department of Human Services
may flow from the release of the documents, given that the department already has an obligation to
make the documents available to the public under the FOI Disclosure Log when documents are
released as a result of an FOI request. Accordingly, I am not persuaded that the charges should be
reduced or waived on this ground.
In light of the above, I am not satisfied that there are compelling public interest factors in favour of
reducing or waiving the charge associated with the processing of the documents you have
requested.
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 that 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 have considered that the charges associated with FOI requests are not designed to be an
application fee. Rather, they are designed to assist the department to deal with the administrative
burden of processing FOI requests. Having viewed the documents within the scope of your request,
I am satisfied that estimated time and the amount of charges notified to you are reasonable and
appropriate.
In addition, the figures used by the department to calculate the time taken to process your request
(2 minutes to examine a page and 3 minutes to consider and apply any exemptions), for the
purpose of issuing the charges notification to you, are consistent with what the Australian
Information Commissioner has previously found to be reasonable. For example, in
Cash World Gold
Buyers Pty Ltd and Australian Taxation Office (Freedom of information) [2017] AICmr 20, the
Information Commissioner found that between 30 seconds to 5 minutes per page is the reasonable
estimate of time required for an agency to assess and edit a document.
You have not provided any other submissions to indicate that the charges should be reduced or
waived on other grounds. On that basis, I have not considered this matter further.
Conclusion
I am not persuaded that the charge should be reduced or waived on the grounds of financial
hardship or because to so reduce or waive the charge would be in the general public interest or in
the interests of a substantial section of the public or for any other reason.
I have, however, decided to reduce the charge of $414.80, as notified to you on 24 April 2017 to
$208.80, due to the reduced number of documents in scope. I am satisfied that this amount is
appropriate and reasonable in order to provide you with a decision on access to the documents.
Required Action
If you would like the department to continue processing your request, you should notify the
department in writing within 30 days of receiving this notice that you:
a) agree to pay the charge; or
b) withdraw the request for access.
Further information on Options A and B is set out below.
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Department of Human Services
Option A - pay the charge
As the charge exceeds $100.00, you are required to pay a deposit of 25%, being $52.20, within
30 days of receiving this notice. You may, of course, elect to pay the charge in full at this point.
The amount due should be paid by cheque or money order made out to the Collector of Public
Monies. Please quote the reference number FOI LEX 28753 with your payment.
Should you elect to pay the charge 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 - withdraw your request
If you wish to withdraw your request you may do so in writing.
Time limits for processing your request
Section 31 of the FOI Act provides that where a notice is sent to an applicant regarding the payment
of a charge in respect of a request, the time limit for processing the request is suspended from the
date the notice is received until either:
a) the day following payment of the charge (in full or the required deposit); or
b) if applicable, the day following the notification to the applicant of a decision not to
impose the charge.
Address for correspondence
Please send all correspondence regarding your FOI request to me at the following address:
Freedom of Information team
Department of Human Services
PO Box 7820
CANBERRA ACT 2610
Or by email to
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx
Publication of information in the FOI disclosure log Information released under the FOI Act may be published in a disclosure log on the department's
website. Section 11C of the FOI Act requires this publication, subject to certain exceptions,
including where publication of personal, business, professional or commercial information would be
unreasonable.
You can ask for a review of this decision
I have reconsidered the assessment of charge and reject your contention that this charge has been
wrongly assessed. If you disagree with the decision to impose a charge, or the amount of the
charge, you can ask for a review. There are two ways you can do this. You can ask for an internal
review from within the department, or 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.
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Department of Human Services
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx. Yours sincerely
Jonathon
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 A
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 a 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 a 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.
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
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Department of Human Services
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Australian Information Commissioner generally prefers FOI applicants to seek internal
review before applying for external review by the Australian Information Commissioner.
Important:
If you are applying online, the application form (the 'Merits Review Form') is available at
www.oaic.gov.au.
If you have one, you should include a copy of the Department of Human Services' decision on
your FOI request with your application
Include your contact details
Set out your reasons for objecting to the department's decision.
Complaints to the Australian Information Commissioner and Commonwealth Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner 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 Australian Information Commissioner must be made in
writing. The Australian Information Commissioner's contact details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Commonwealth 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 Commonwealth Ombudsman may be made in person, by
telephone or in writing. The Commonwealth Ombudsman's contact details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before making a
complaint about a decision.
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Department of Human Services
