If not delivered return to PO Box 7820 Canberra BC ACT 2610
29 May 2018
Our reference: LEX 35790
Posty
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Posty
Freedom of Information Request – Reconsideration of Charges Decision
I refer to your request, dated 22 March 2018, and received by the Department of Human
Services (
department) on that same date, for access under the Freedom of Information Act
1982 (
FOI Act) to the following:
'All documents contained within the file "Telephone standards 111-05010040" as
listed on this page - referred to as your "Operational Blueprint" portal:
http://operational.humanservices.gov.au/public/Pages/specialist-manuals-and-
system-tools/111-05010040-01.html
This includes all four "tabs" on the page –
"Background", "Process", "References" and "Resources".’
On 28 April 2018, you requested that the preliminary assessment of charges for the amount
of $14.55 (
preliminary charge) that was notified to you on 9 April 2018 be reconsidered by
the department.
I have reconsidered the preliminary charge of $14.55 and determined that it is an appropriate
and reasonable charge for processing your request. I have therefore decided to affirm the
preliminary charge.
Background
The department conducted searches of its records and identified 1 document, totalling
4 pages, that is 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.
On 9 April 2018, you were notified that you are liable to pay this charge and that the
preliminary assessment of the charge was $14.55 (
preliminary charge). The charge was
calculated as follows:
Search and retrieval time: 0.97 hours, at $15.00 per hour:
$14.55
Decision-making time (*after deduction of 5 hours): 0 hours, at
$20.00 per hour
$0.00
TOTAL
$14.55
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in
the calculation.
PAGE 1 OF 10
On 28 April 2018, you responded to the preliminary charge notification, contending that the
preliminary charge should be reconsidered (
reconsideration request).
What I took into account
In reaching my decision I took into account:
the preliminary charge;
your reconsideration request;
the documents falling within the scope of your request;
relevant case law;
the FOI Act;
the
Freedom of Information (Charges) Regulations 1982 (
Regulations); and
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
Guidelines).
Reconsideration of the preliminary charge
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 has the discretion to determine whether the
charge is to be reduced or not imposed.
In making a decision in relation to this discretion, section 29(5) requires that I 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’.
Given that your submissions cover various issues, I will respond to each issue separately.
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.
Relevantly, paragraph 4.75 of the Guidelines states:
‘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
PAGE 2 OF 10
Department of Human Services
Broadcasting Corporation referred to the definition of financial hardship in guidelines
issued by the Department of Finance for the purpose of debt waiver decisions:
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.’
Furthermore, paragraph 4.77 of the Guidelines further 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.’
You submitted that:
‘…I am not a man of significant financial means, I'm supporting my wife (unpaid
leave) and a small child as well as a mortgage on a similar income as yourselves
(Centrelink Band 3 (APS 5 & 6) I believe). times are tight.’
Having carefully considered your submissions and the Guidelines, I am unable to conclude
that payment of the charge would cause you financial hardship. This is for two reasons. First,
and most significantly, it is difficult to quantify how a charge of $14.55 would cause financial
hardship as described in paragraph 4.75 of the Guidelines. Second, while I acknowledge that
you have provided an outline of your financial circumstances, the Guidelines state an
applicant is ordinarily expected to provide evidence, for example of income, debts or assets.
Your statement, taken alone, does not meet the requirement provided in paragraph 4.77 of
the Guidelines.
In summary, based on the information currently before me, I am not satisfied that the charge
should be waived or reduced on the ground of financial hardship.
The public interest
In making my decision, I am also required under subsection 29(5) of the Act 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 states that, in considering the public interest, matters to be
considered include:
whether the information in the document is already publicly available,
the nature and currency of the topic of public interest to which the document relates,
and
the way in which a public benefit may flow from the release of the document.
In your request for a reconsideration of the charge, you submitted that:
PAGE 3 OF 10
Department of Human Services
‘I also dispute the charge on public interest grounds - it is currently of great public
interest the phone services that Centrelink provide. to support this claim just look at
the sheer amount of recent results for a google news search of "centrelink phone"
EG:
https://www.google.com.au/search?q=centrelink+phone&safe=off&source=lnms&tbm
=nws&sa=X&ved=0ahUKEwiZ1rCcqNraAhXHw7wKHUcsCTYQ_AUICigB&biw=1435
&bih=953&dpr=2 (psst I like this one
http://junkee.com/centrelink-ultimate-
fuckboy/156100 ).
One thousand two hundred and fifty new contractors are being employed in
Centrelink's call centres - ensuring that they are all meeting the telephone standards
expected is of paramount consequence. Knowing what those standards are is kind of
required for that.’
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 document.
Relevantly, in
Cashman & Partners v Secretary, Department of Human Services and Health
(1995) FCR 301, 307, the Federal Court held that:
‘The [Administrative Appeals] Tribunal has consistently, and in my view correctly,
accepted that the proper approach to the question of benefit to the general public is
that stated in
Cazalas v US Department of Justice [1983] USCA5 1422; (1983) 709 F
2d 1051 at 1053. In
Cazalas, it was held that the question of benefit to the general
public was concerned with benefits flowing from the fact that information previously
withheld by the agency is now accessible to the community.’
Having considered your submissions, I am not satisfied that they are sufficiently compelling
reasons for the charge to be waived in the public interest.
You submit that the documents relate to a topic that is a strong area of public interest. While I
accept that the engagement of contractors answering Centrelink calls has been the subject
of recent media coverage, the information contained in the document you have requested is
not related to the engagement of contractors or staffing arrangements for Centrelink calls.
The department has made information about its telephone services available in the public
domain, for example:
Department of Human Services 2016-2017 Annual Report, a link to which can be
found here:
https://www.humanservices.gov.au/sites/default/files/2017/10/8802-1710-
annual-report-2016-17.pdf;
the Australian National Audit Office 2015 report titled ‘Management of Smart Centres'
Centrelink Telephone Services’ which can be found here:
https://www.anao.gov.au/work/performance-audit/management-smart-centres-
centrelink-telephone-services.
On this basis, I do not consider that the release of the document you have requested would
significantly contribute to the information currently in the public domain, to the extent that the
public generally, or a substantial section of the public, would benefit from disclosure of the
requested documents.
PAGE 4 OF 10
Department of Human Services
As a result, I am not satisfied that the charge should be waived or reduced on public interest
grounds.
The cost of searching and retrieving the documents
You submit that:
‘Should any charge be allowed to stand - in any case - your estimation of 0.97 hours
is laughably incorrect. This is an estimate of 58 minutes and 12 seconds to perform
the likely following actions:
1) Open your web browser
2) load your operational portal intranet search page
3) search for the exact code of the file that I provided you - "Telephone standards
111-05010040" or even just "111-05010040"
4) copy that hyperlink result to your clipboard.
Note: this is precisely where all charges should stop - no malarkey about exporting to
other formats like PDF, no opening an email to the person you need to discuss it with
or considering it yourself for delivery to me - that is the entire scope of the FOI act in
this regard as per section 4.25 of the FOI act:
"4.25 Search and retrieval time does not include time spent by agency officers, other
than the decision maker, discussing and reviewing the results of search and retrieval
activities.[4]"
…section 4.5 also states:
"Charges should fairly reflect the work involved in providing access to documents on
request."
I estimate that a charitable estimate to perform the preceding four actions is five
minutes. which at $15 an hour comes to a total charge of $1.25.’
Paragraph 4.22 of the Guidelines provides:
‘An agency or minister can charge for ‘the time spent … in searching for or retrieving
the document’ (Charges Regulations, Schedule, Part I, Item 2). This encompasses
time spent:
consulting relevant officers to determine if a document exists
searching a file index to establish the location of a document
searching a file to locate a document
physically locating a document and removing it from a file.’
I consider that the search and retrieval time is a valid calculation, on the basis that the steps
taken to search for and retrieve the document are more than what you have indicated. For
instance, the department conducts the necessary quality assurance and clearance steps to
ensure that the document which has been located, is the correct document. In addition, the
department aims to locate the original version of the document where reasonably practicable.
However, depending on the format in which the original version is stored, it may be
necessary to convert it to a more appropriate format. This is provided for in sections 17 and
20 of the FOI Act.
PAGE 5 OF 10
Department of Human Services
I note that you have not been charged for decision making time.
Procedural fairness
You submit that:
‘I do not believe this is in the sprit of procedural fairness and that it is an attempt to
cause detriment to myself for having made similar requests - an act in bad faith. I do
not think this is proper use of commonwealth resources (in relation to human
resource time) in accordance with the APS Code of Conduct - which is supported by
the Public Governance, Performance and Accountability Act 2013 (PGPA Act) which
states in section 27:
"An official of a Commonwealth entity must not improperly use his or her position:
(a) to gain, or seek to gain, a benefit or an advantage for himself or herself or any
other person; or
(b) to cause, or seek to cause, detriment to the entity, the Commonwealth or any
other person."
…I'd like to remind you yet again that section 4.5 of the FOI act states "[a] charge
must not be used to unnecessarily delay access or discourage an applicant from
exercising the right of access conferred by the FOI Act." I contend that this fee is
being imposed precisely and exclusively for this purpose.’
As stated above, I consider that the charge calculated by the department is a minimal
amount, on the basis that it was the lowest possible cost of search and retrieval of the
document you requested. The FOI Act and Charges Regulations enables agencies to impose
charges in accordance with their provisions. In
Re Herald & Weekly Times and Secretary,
Department of Finance and Administration [2000] AATA 506, the AAT held at [48]:
‘Section 29 establishes the prima facie position that charges should be imposed so
that the applicants contribute to the cost of processing all their requests.’
Accordingly, I do not consider that the decision to impose charges, nor the amount of
charges calculated, in relation to your request, are inconsistent with the principles of
procedural fairness, on the basis that they are consistent with the intention and provisions of
the FOI Act and do not indicate an intention to discourage or delay the processing of FOI
requests.
Conclusion
For the reasons given above, I have decided to affirm the preliminary assessment of the
amount of $14.55 as the appropriate and reasonable charge to process your request.
Required Action
If you would like the department to continue processing your request, you must notify the
department in writing within 30 days of receiving this notice that you:
a) agree to pay the charge; or
b) withdraw your request.
PAGE 6 OF 10
Department of Human Services
Please note that the payment of a charge does not guarantee access to documents,
redacted or otherwise.
Further information on options a) and b) is set out below.
Option a) - pay the charge
As the charge is below $25, you are required to pay the full amount of $14.55 within 30 days
of receiving this notice.
I note that you referred to ‘payment by money order’ as the only payment method accepted
by the department. On the contrary, as referred to in the department’s letter and in the
following paragraphs, two other payment methods are available to you. You may select one
of the following payment methods:
1. Online payment via Government EasyPay - follow
this link and enter the relevant
details. You will need your FOI LEX reference number,
LEX 35790; or
2. Cheque made out to the Collector of Public Monies and posted to Freedom of
Information, Department of Human Services, PO BOX 7820, Canberra BC, ACT
2610; or
3. Money order made out to the Collector of Public Monies and posted to Freedom of
Information, Department of Human Services, PO BOX 7820, Canberra BC, ACT
2610.
If you elect to pay the charge, please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx to
advise us of your payment. Please quote reference number
LEX 35790 in this
correspondence.
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
stopped 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.
You can ask for a review of this decision
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.
PAGE 7 OF 10
Department of Human Services
Further assistance
If you have any FOI questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Doug
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Litigation Branch | Legal Services Division
Department of Human Services
PAGE 8 OF 10
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
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.
PAGE 9 OF 10
You can
lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of 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 with your application a copy of the Department of
Human Services' decision on your FOI request
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 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
complaining about a decision.
PAGE 10 OF 10
Department of Human Services
