Freedom of Information
CP1-6-001
PO Box 7910
CANBERRA BC ACT 2610
Tel: 02 626 62200
Fax: 02 626 62112
xxx@xxxxxxx.xxx.xx
Our reference: FOI 108/17/18
Ms Verity Pane
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Pane
NOTICE OF DECISION ON REQUEST FOR REVIEW OF CHARGES
1.
I refer to your email, dated 9 September 2017 in which you requested access, under the
Freedom of Information Act 1982 (FOI Act), to:
Item 1: Under FOI (Section 17 may apply), I request the top ten highest transactional
value transactions (and the related CMS Expense Report, including supporting
documentation) recorded in CMS for FY2016/17, for Defence Travel Card (DTC) and
Defence Purchasing Card (DPC) expenditures by SES(E) level employees only (that is on
cards issued in their name), for the following expense type expenditures:
* Hotel Accommodation
* Cash Advances
* Airfares
* Hospitality
* Car Hire (self drive)
* Taxis or similar car with driver expenditures
* Meals
Item 2: I also seek the top 10 largest reimbursement payments to DTC/DPC accounts
(held by SES(E) level employees) for FY2016/2017 (that is reimbursement using private
funds to offset over-payments or non Departmental expenses transacted on DTC/DPC
cards in the name of SES(E) level employees).
The Department excludes personal email addresses, signatures, personnel (PMKeyS)
numbers and mobile telephone numbers, contained in documents that fall within the
scope of a FOI request unless you specifically request such details. Defence also excludes
duplicates of documents.
Liability to pay charges
2.
In a letter dated 21 September 2017, you were advised of the decision, in accordance with
section 29 of the FOI Act, that you were liable to pay a charge for the processing of your request
and for giving access to the requested documents.
2
3.
On 26 September 2017 you sought a review of the charges associated with your request
on public interest grounds.
Decision maker
4.
By arrangements made by Defence under section 23 of the FOI Act, I am authorised to
decide on your request for waiver of the processing charges.
Material taken into account
5.
In coming to my decision, I had regard to:
a. your submission in support of remission of the charges;
b. the relevant provisions of the FOI Act;
c. the relevant provisions of the FOI (Charge) Regulations; and
d. the Guidelines published by the Office of the Australian Information
Commissioner (the Guidelines).
Relevant legislation – section 29(5) of the FOI Act
6.
Section 29(5) of the FOI Act provides as follows:
Without limiting the matters the agency or Minister may take into account in determining
whether or not to reduce or not to impose the charges, the agency or Minister must take
into account:
a. whether the payment of the charge, or part of it, would cause financial
hardship to the applicant, or to a person on whose behalf the applicant was
made; and
b. 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.
Consideration of financial hardship
7.
As noted above, I am required to take into account whether access to the requested
documents would cause you any financial hardship.
8.
The Guidelines provide the following advice:
4.75 Whether payment of a charge would cause financial hardship to an applicant is
primarily concerned with the applicant’s financial circumstances and the amount of the
estimated charge. Financial hardship means more than an applicant having to meet a
charge from his or her own resources. The decision in ‘AY’ and Australian Broadcasting
Corporation
referred to the definition of financial hardship in guidelines issued by the
Department of Finance for the purpose of debt waiver decisions:
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Financial hardship exists when payment of the debt would leave you unable to
provide food, accommodation, clothing, medical treatment, education or other
necessities for yourself or your family, or other people for whom you are
responsible.
4.76 Different hardship considerations may apply if the request is made by an
incorporated body or an unincorporated association. The mere fact that costs for FOI
requests have not been budgeted for has been held to be a commercial decision, rather
than a matter of a lack of funds.
4.77 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. However, an agency should be cautious about conducting an
intrusive inquiry into an applicant’s personal financial circumstances. Agencies need to
have regard to the policy of the Privacy Act, which is to minimise the collection of
personal information to what is required for the particular function or activity. For
example, in this case, to make a decision as to whether to waive or reduce a charge.
9.
In the absence of any such information in relation to your request I am not satisfied that
the payment of the charge, or part of it, would cause you any financial hardship.
Consideration of public interest
10.
In relation to public interest
considerations, the Guidelines
state:
4.79 The Act requires an agency or minister to consider ‘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’ (s 29(5)(b)). This test is different to and to be
distinguished from public interest considerations that may arise under other provisions of
the FOI Act.
4.80 Specifically, 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. Nor will
s 29(5)(b) be satisfied by a contention that it is in the public interest for an individual
with a special interest in a document to be granted access to it, or that an underlying
premise of the FOI Act is that transparency is in the public interest.
4.81 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 this disclosure.
This may require consideration both of the content of the documents requested and the
context in which their public release would occur. 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.
11.
In your email dated 26 September 2017 you provided arguments in favour of the charges
being waived. Specifically you stated
“Over a number of years, there has been repeated media
reporting, ANAO and Senate Committee reports into Defence management of DTC/DPC credit
cards. How and what Defence is using Commonwealth funds for, is also of long continued
interest to members of the public, and has attracted wide media coverage. Also, as the
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Australian Information Commissioner stated in Australian Associated Press Pty Ltd and
Department of Immigration and Border Protection [2016] AICmr 54 (31 August 2016), “To my
mind, there is a significant public interest in understanding how and for what purpose public
funds are being used”.
12.
While I acknowledge that there is a public interest in showing how public funds are being
used and ensuring agencies are acting transparently, I do not consider there is a public interest in
providing all of the supporting documentation. I consider that the public interest can be served
by providing access to the higher level reports.
13.
I note that paragraph 4.83 of the Guidelines provides a list of examples that demonstrate
when giving access to a document may be in the general public interest or in the interest of a
substantial section of the public. The example I consider relevant to this case is that:
The transactional reports relate to a matter of public debate and disclosure of these
reports would assist public comment on or participation in the debate or discussion.
14.
While I consider that the higher level reports would assist with public comment or
discussion, I do not consider this relevant for the supporting documentation.
15.
In addition to the above, I note that the preliminary assessment of charges accurately
reflects the level of work involved by the Department to identify, retrieve and consider the
documents matching the scope of the request.
16.
Notwithstanding the above, I note in your email of 26 September 2017 that you are
willing to reduce the scope of your request to exclude the supporting documentation relating to
the transactions. I also note that paragraph 4.89 of the Guidelines suggest it may also be
appropriate to reduce or waive a charge if the applicant responds to a charge notice by revising
the terms of their request so that it requires less work to process. Following advice from the
Chief Information Officer Group, I am satisfied that reducing the scope to exclude supporting
documentation for the top ten transactions would significantly reduce the amount of work
involved in processing the request.
Charges decision
17.
After taking all of the above into consideration, I consider there is a public interest
argument in providing access to the transactional reports but not the supporting documentation.
Should the scope be reduced as you have suggested, I consider that the remaining charge would
be minimal. Given that one of the objects of the FOI Act is to provide prompt access at the
lowest reasonable costs to applicants, I have decided to waive the charges on the revised scope.
5
Way forward
18.
Noting the above, I suggest the revised scope would be for access to:
Item 1: The top ten highest transactional value recorded in CMS for FY2016/17, for
Defence Travel Card (DTC) and Defence Purchasing Card (DPC) expenditures for the
following expense type expenditures:
* Hotel Accommodation
* Cash Advances
* Airfares
* Hospitality
* Car Hire (self drive)
* Taxis or similar car with driver expenditures
* Meals
The above is for SES(E) level employees only (that is on cards issued in their name),
Item 2: The top 10 largest reimbursement payments to DTC/DPC accounts (held by
SES(E) level employees) for FY2016/2017 (that is reimbursement using private funds to
offset over-payments or non Departmental expenses transacted on DTC/DPC cards in the
name of SES(E) level employees).
excluding personal email addresses, signatures, personnel (PMKeyS) numbers and mobile
telephone numbers, contained in documents that fall within the scope of a FOI request and
duplicates of documents.
19.
If you agree with the revised scope, and wish to proceed, please confirm via return email.
20.
Alternatively, if you disagree with my decision, you are entitled to apply for an internal
review. Such an application should be made within 30 days of receipt of this letter or such
further time as the Department may allow. The fact sheet
Freedom of Information – Your Review
Rights is at Enclosure 1.
Further advice
21.
Please contact me if you have any queries about your request.
Yours sincerely
Digitally signed by
melissa.davi melissa.davidson
Date: 2017.09.27
dson
13:54:45 +10'00'
Melissa Davidson
Assistant Director Information Access
Enclosure 1: Freedom of Information – Your Review Rights
