If not delivered return to PO Box 7820 Canberra BC ACT 2610
3 July 2017
Our reference: LEX 30073
Mr Bill Tarte
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Tarte
Freedom of Information Request - Internal Review of Charges
I refer to your correspondence, dated and received by the Department of Human Services (the
department), on 3 June 2017. You requested an internal review of the decision made by a
delegate of the department on 2 May 2017 (LEX 28922) 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. As you have requested an internal review, I
am also a separate decision-maker to the FOI Delegate involved with your substantive FOI
request LEX 28922. My decision is set out below.
Background
The department received your original request on 3 April 2017 for access to the following
documents under the FOI Act:
'I request access to a copy of any privacy impact assessments held by DHS Programme
Advice and Privacy Branch as referred to in my previous request here by Thomas:
https://www.righttoknow.org.au/request/3191/response/8981/attach/html/4/LEX%2028
087%20Decision%20Decision%20final.pdf.html. If any PIA's were provided in a
combined report, I request access only to that part of the report relating to the PIA'.
On 2 May 2017, the department issued you with a preliminary assessment of the charges
involved in processing your request (as the requested documents contain non-personal
information). In this letter, the department also advised you that 13 documents (totalling 482
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
$1,128.95, calculated as follows:
Search and retrieval time: 12.57 hours, at $15.00 per hour:
$188.55
Decision-making time (*after deduction of 5 hours): 47.02
hours, at $20.00 per hour
$940.40
PAGE 1 OF 8
TOTAL
$1,128.95
On 2 May 2017, you wrote to the department by email, contending that the charge of $1,128.95
be waived on the grounds that payment of the charge would cause financial hardship.
On 2 June 2017, the department notified you of a decision in relation to the reconsideration of
the charges decision. In this decision, the department decided to not to reduce or waive the
charge on the grounds of financial hardship, public interest or other grounds. On that basis, the
charge of $1,128.95 was affirmed.
On 3 June 2017, you requested an internal review of the department’s decision to impose
charges for FOI request LEX 28922, in the following terms:
‘I am writing to request an internal review of Department of Human Services's handling of
my FOI request 'Privacy impact assessments held by DHS Programme Advice and
Privacy Branch'.
I believe that I have been unable to directly correspond in a way that protects my
anonymity and at the same time can take into account how the imposition of the charges
will cause me financial hardship. All I require is a way of me calling the FOI officer to
discuss this.
A full history of my FOI request and all correspondence is available on the Internet at this
address:
https://www.righttoknow.org.au/request/privacy_impact_assessments_held’.
Internal Review Decision on charges
I have decided, under section 54C and subsection 29(8) of the FOI Act, to affirm the decision,
made following your request for reconsideration, to impose a charge. You are therefore liable to
pay the processing charge of $1,128.95.
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 2 May 2017, notifying you of the charge;
your correspondence of 2 May 2017 contending that the charge should not be imposed;
the department’s correspondence of 2 June 2017, notifying you of the decision to affirm
the charge imposed;
your correspondence seeking internal review of the department’s decision to affirm the
charge, dated 3 June 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).
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Department of Human Services
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
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.
On 2 May 2017, you were notified that you were liable to pay a charge for the processing of your
request and that the preliminary assessment of that charge was $1,128.95, based on 13
documents totalling 482 pages.
As set out above, the preliminary estimate of charge was calculated as follows:
Search and retrieval time: 12.57 hours, at $15.00 per hour:
$188.55
Decision-making time (*after deduction of 5 hours): 47.02 hours, at
$20.00 per hour
$940.40
TOTAL
$1,128.95
A detailed breakdown of the time taken to process the request is set out below:
Search and retrieval time
12.57 hours
Examine pages for decision-making at an average of 2 minutes
16.07 hours
per page
Redaction time at 5 minutes per page for 482 pages
24.10 hours
Consult with third parties (1 hour per third party)
5.00 hours
Draft statement of reasons
6.86 hours
PAGE 3 OF 8
Department of Human Services
TOTAL*
64.60 hours
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
Search and retrieval
The search and retrieval time for processing your request has been estimated at 12.57 hours,
based on the following:
10 mins per file for search and retrieval;
45 minutes per file for tagging relevant pages; and
30 minutes per 10 documents for preparing schedules detailing all relevant documents.
Given the broad range of documents requested, the process of searching for and retrieving the
relevant documents will be a time-consuming task.
This is because, the documents are held across a number of electronic files, each of which
required an individual search in order to obtain the documents you have requested. As such, the
estimated processing time for search and retrieval is a conservative estimate.
Decision making time
In the calculation, as set out above, the estimated processing time for decision-making is 47.02
hours (after the deduction of five hours).
On my review of the documents you have requested, I have found that the documents contain a
substantial amount of third party business information as well as sensitive operational
information. Due to the complex nature of these documents, making a decision on disclosure of
the documents would require lengthy examination and extensive redaction of most pages
identified. On that basis, I am satisfied that the estimated processing time for decision making is
reasonable.
In light of the reasoning set out above, I am of the view that the charge, as calculated, fairly
reflects the work involved in processing your request and is a fair contribution towards the cost
of processing your request.
The charges associated with FOI requests are not designed to be an application fee or a fee
ensuring the release of documents. Rather, they are designed to assist the department to deal
with the administrative burden of processing FOI requests.
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, for the following reasons:
you have not provided any evidence of financial hardship;
the documents would not assist members of the public in debate or discussion; and
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Department of Human Services
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.
In your email dated 3 July 2017, you provide the following:
‘I believe that I have been unable to directly correspond in a way that protects my
anonymity and at the same time can take into account how the imposition of the charges
wil cause me financial hardship.’
In regards to waiver of a charge on the grounds of financial hardship, paragraph 4.77 of the
Guidelines states:
‘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’
I understand that you wish to protect your anonymity, however, the department cannot consider
your financial circumstances in the absence of evidence. On that basis, I have not considered
this matter further.
Public interest
In your emails dated 2 May 2017 and 3 June 2017, you did not provide submissions regarding
how disclosure of the documents would be in the public interest. Nevertheless, under paragraph
29(5)(b) of the FOI Act, I am required to take into account whether the provision of access to the
documents 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.
Paragraph 4.81 of the Guidelines 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 department’s operations.
This is because the documents include detailed information regarding the process of collection,
management and protection of personal information. Release of the documents would adversely
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Department of Human Services
affect and compromise the department’s ability to collect accurate and comprehensive
information about customers, and protect disclosure of such information to the general public.
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 your
request, in that there is a public interest in protecting the confidentiality of the department’s
management of personal information. Release of such information could reasonably be
expected to impede the management of personal information and thereby impede the proper
and efficient conduct of the department’s operations. Therefore, release of the documents would
be contrary to the public interest.
Further, while I accept that the department’s collection of personal information 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 following information is available:
the Community Affairs Legislation Committee Estimates Additional Budget Estimates
2016-17 Report (pages 15 – 16), which is available at
http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/clacctte/estimates/ad
d1617/index;
the department’s responses to a number Questions on Notice arising out of the Inquiry,
which are available
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/
SocialWelfareSystem/Additional_Documents; and
the department’s submission to the Inquiry, which is available via this
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/
SocialWelfareSystem/Submissions.
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 processing charge for your request.
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.
In light of these factors, I have decided that there is no public interest in reducing or waiving the
charge.
PAGE 6 OF 8
Department of Human Services
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 28922. 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 28922 should remain at $1,128.95 and
no reduction or waiver will apply.
Going forward, no further action on the request will be undertaken until the charges imposed for
FOI Request 28922 have been received by the department. After this has occurred, the
department will be in a position to continue processing your FOI request.
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
Stacey
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
