FOI
Charges notice made under the Freedom of Information Act 1982
Decision to impose a charge and preliminary assessment of charge of Information Law,
Legal Services & Assurance
Applicant:
Verity Pane
Decision date:
27 September 2018
FOI reference number:
FOI 23544
Documents:
Request for document to be created (as detailed at paragraph 3 below)
Dear Verity Pane
Freedom of Information Request: FOI 23544
1.
I have made a decision to impose charges in the amount of $690.75.
Authority to make this decision
2.
I, Position Number 62210022, Information Law, Legal Services & Assurance, am an officer authorised
by the Secretary of the Department of Veterans’ Affairs (the Department) to make decisions about
charges applying to requests for access to documents in the possession of the Department, in
accordance with Section 23(1) of the
Freedom of Information Act 1982 (the FOI Act).
Background
3.
On 16 July 2018, you made a request for access to documents in the possession of the Department.
Your request sought access to:
In light of recent media reporting and admissions by the Minister in Federal Parliament that the
Department spent more than $0.6m in external legal services fees in regards to just one
veteran - Martin Rollins - in relation to DVA’s deliberate backdating of a rewrite of a DVA policy
to exclude Mr Rollins’ receiving a benefit he was entitled to at the time of his applying for it
(http://www.abc.net.au/7.30/dva-secretly-changed-rules-to-deny-veterans-claim/9883774)
there is a public interest in understanding how the Department is expending public funds on
external legal services.
While the Department reports just one summary total of expenditure on external legal services
in its annual reports, this is clearly insufficient and far too opaque to understand what the
Department is spending on external legal costs for individual matters. While this information
does indicate the Department spends between $7m - $10m on external legal services roughly
every financial year, it gives no indication whether it may relate to only a small number of
individual veterans or many or what the Department roughly spends per legal issue - which is
1
important to understand when considering if the claims that the Department is combative and
litigious are overstated or not.
Certainly the recent admission (initially refuted) that the Department has spend in excess of
half a million dollars, litigiously, to defend this backdated change of policy to deny Martin
Rollins a benefit that existed at the time he applied for it (and ironically this legal expenditure
many hundreds of thousands of dollars greater than the benefit he was otherwise entitled to
receive), raises public interest questions whether such excessive external legal expenditure is
endemic or is a one off isolated case.
To that end, under FOI, I seek under s 17 of the FOI Act for a summary document to be created
(so as to avoid unnecessary disclosure of irrelevant Departmental information) from data in the
Departments financial and information management systems, to break down these global
external legal services expenditure, so that greater transparency is given.
I seek a breakdown to be provided for the last three financial years - FY17/18, FY16/17, and
FY15/16 - and to be broken down to matters involving individual veterans and other. Where
matters involved individual veterans, this should be further broken down to stating the
cumulative external legal services expenditure per veteran involved (with each veteran referred
to by pseudonym - so first veteran is Veteran A, next is Veteran B, and so on). In order to reduce
burden, where external legal expenditure involving an individual veteran is below $10K
cumulative for each financial year, they may be reported as a group (as the interest is in
excessive external legal expenditure). An example of the layout I seek is below:
...............................FY17/18...................FY16/17....................FY15/16
......................................$...............................$...............................$
Other
Veteran A
Veteran B
etc
Veterans > $10K
4.
On 15 August 2018, the Department issued you a notice in accordance with section 24AB of the
FOI Act, on the grounds that processing your request would unreasonably divert the resources of the
Department from its operations as specified in section 24AA(1)(a)(i) of the FOI Act due to its
size and
complexity; noting 60 hours would be required to process the request
.
5.
Following this notice, you revised the scope of your request, noting you “ …
would however be willing
to refine the scope to FY15/16 in the first instance…” As this removed the practical refusal reason, it
was agreed the Department would process the request.
Your liability to pay a charge
6.
In accordance with Section 29(1) of the FOI Act, I have decided that you are liable to pay a charge in
relation to your request.
Preliminary assessment of the amount of the charge
7.
In accordance with Section 29(1)(b) of the FOI Act, the Department has undertaken a preliminary
assessment of the amount of the charge you are liable to pay in relation to your FOI request.
Accordingly, you are liable to pay $690.75. A breakdown of this charge, as well as the basis on which
the assessment is made, is provided for in detail at Schedule 1.
2
Deposit
8.
As the charge is more than $100.00, you will need to pay a deposit of $172.69 (which is 25% of the
total charges applying to your request) before further action can be taken on your request. This
amount is set in Regulation 12(2)(b) of the Freedom of Information (Charges) Regulations 1982.
9.
The deposit is not refundable except in some limited circumstances (for example, if the Department
fails to make a decision on your request within the statutory time limit), or may be refundable in part
if the final charge is less than the deposit paid.
If you disagree with the Department’s decision to impose a charge or the preliminary
assessment of charges
10.
Under the FOI Act, you have the right to contend that the charge has been wrongly assessed, should
be reduced, or should not be imposed.
11.
In deciding whether a charge should be reduced or not imposed, the decision-maker in our agency
must take into account:
•
whether payment of the charge, or part of it, would cause you financial hardship;
•
whether giving access to the document is in the general public interest or in the interest of a
substantial section of the public; and
•
any other relevant matter.
The time you have to respond and what you need to do
12.
You have 30 days to respond in writing to this notice. We therefore expect a response from you by
Monday, 29 October 2018. By that date, you must do one of the following things in writing:
•
agree to pay the charge, and:
forward a cheque for the charge in full, in the amount of $690.75; or
forward a cheque for the required deposit, in the amount of $172.69 (this will mean that
you will not be entitled to access the requested documents until the full charge is paid);
•
contend that the charge has been wrongly assessed, or should be reduced or not imposed and
explain your reasons; or
•
withdraw your request.
13.
Please send your response, including payment of the charge in full or the required deposit, to:
Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6316
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx
14.
The period for processing your request is suspended from the day that you receive this notice and
resumes on either the day you pay the charge (in full or the required deposit) or the day on which
this agency makes a decision not to impose a charge.
3
15.
If you fail to give the Department such notice within 30 days from the date of this notice, your
request for access to the document will be taken to have been withdrawn.
Your rights of review
16.
If you disagree with the Department’s decision to impose charges in relation to your FOI request, you
can ask for the decision to be reviewed. There are two ways you can ask for review of a decision:
internal review by the Department, and external review by the Office of the Australian Information
Commissioner (OAIC).
Internal Review
17.
Under Section 54 of the FOI Act, you may apply in writing to the Department for an internal review of
my decision to impose a charge and/or the preliminary assessment of charge. There is no charge for
internal review. You must apply within 30 days of being notified of the decision, unless the
Department extends the application time. You should contact the Department if you wish to seek an
extension. The Department must make a review decision within 30 days. If it does not do so, its
original decision is considered to be affirmed. The review will be carried out by a different
departmental officer, usually someone at a more senior level. Where possible, please attach reasons
why you believe review of the decision is necessary. You can lodge your application in one of the
following ways:
Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6316
Email: xxxxxxxxxxx.xxxxxx@xxx.xxx.xx
Information Commissioner review
18.
Under section 54L of the FOI Act, you may apply directly to the Information Commissioner to review
my decision to impose a charge and/or the preliminary assessment of charge. An application for
review by the Information Commissioner must be made in writing within 60 days of the date of this
notice. The Information Commissioner is an independent office holder who can review the decisions
of agencies and ministers under the FOI Act. The Information Commissioner also investigates
complaints about agency actions under the FOI Act. However, if you are complaining that the
Department’s decision is wrong, it will be treated as an application for a review. You do not need to
seek an internal review from the Department before seeking an internal review from the Information
Commissioner. However, going through the Department’s internal review process gives the
Department the opportunity to reconsider its initial decision, and your needs may be met more
quickly without undergoing an external review process. The Information Commissioner’s review is
free. You must apply to the Information Commissioner within 60 days of being given notice of the
decision. You can ask the Information Commissioner for an extension of time to apply, and this may
be granted if the Information Commissioner considers it is reasonable in the circumstances. You can
lodge your application in one of the following ways:
Online: www.oaic.gov.au
Post: Office of the Australian Information Commissioner
GPO Box 2999, Canberra ACT 2601
Facsimile: (02) 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
In person: 4 National Circuit, Barton ACT; or at
Level 3, 175 Pitt Street, Sydney NSW.
4
19. More information about your review rights under the FOI Act is available in Fact Sheet 12 published
by the Office of the Australian Information Commissioner: http://oaic.gov.au/freedom-of-
information/foi-resources/freedom-of-information-fact-sheets/foi-factsheet-12-your-review-rights
Contact us
20.
If you wish to discuss this decision to impose a charge, or the preliminary charges estimate, please do
not hesitate to contact me using the following details:
Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6316
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours Sincerely,
Position Number 62210022
Information Law
Legal Services & Assurance
27 September 2018
5
