FOI
Revised decision made under section 55G of the Freedom of Information
Act 1982
Revised decision and reason for decision of Leia (Position Number 62210022),
Information Law Section, Legal Services and Audit Branch, Department of Veterans’
Affairs
Applicant:
Verity Pane
Date of primary decision:
9 November 2018
FOI reference number:
FOI 25062
Revised decision date:
24 May 2019
Revised decision reference number:
ICR 28421
Dear Verity Pane,
1.
The purpose of this letter is to issue you a revised decision in accordance with section 55G of the
Freedom of Information Act 1982 (
FOI Act). This decision relates to your application for Information
Commissioner Review of FOI 25062 (MR18/00907 refers).
2.
I have made a decision to vary the original decision made by Julie (Position Number 62212962), Legal
Officer, Information Law Section, to apply charges in the amount of $403.45 to process your FOI
request.
3.
I have decided that charges do apply, but that the charges payable amount to $145.84. This takes
into account a 50 per cent reduction of the overall charge of $291.68, in the interests of resolving the
related IC Review. A deposit of $36.46 is required.
Authority to make this decision
4.
I, Leia (Position Number 62210022), Assistant Director, Information Law Section, am an officer
authorised by the Secretary of the Department of Veterans’ Affairs (
Department) to make decisions
about access to documents in the possession of the Department in accordance with section 23(1) of
the FOI Act.
1
Summary
5.
On 13 October 2018, you made a request for the Department to create a document from data in the
possession of the Department. Your request sought access to:
…Under s 17 of the FOI Act, I apply for a one page summary document to be compiled from
information held in your agency’s information systems, which will primarily (and possibly
only require) information from DVA’s aDVAnce system, to set out the number of DVA
clients, by age group, that were referred to SPOC management by the Coordinated Care
unit and Client Liaison Unit (to be listed separately) for the month of July 2018 (TRIM and
Outlook need not be searched, based on information given by the Coordinated Client
Support Program, that states such methods have not been used since Feb 2016 for referral
management)…
Format of compiled document:
Unit....................FY15/16...................FY16/17..................FY17/18
CLU - > 65
CLU - 65+
CC - > 65
CC- 65+…
6.
On 25 October 2018, the Department provided you with a Charges Notice, advising of a preliminary
assessment of charges for processing your request in the amount of $403.45. You were also advised
that a deposit of $100.86 was required before any further action could be taken on your request.
7.
On 25 October 2018, you requested a reduction/waiver of charges associated with your request on
the basis that the charges were wrongly assessed. Your request was made in the following terms:
…Disappointingly, there isn’t even an attempt to justify the processing time claimed (at least
previous ones did have some description) this time, and the summary charges even incorrectly
has two different total charge amounts on it (obviously this was just a quick cut and paste job) -
being a total charge of $119.54 or $403.45 depending where you look.
At least this is a preliminary notice this time.
But yet again it highlights the fictional nature of these estimates.
The same data, but for a six month period, recently had an invalid post-dated charges notice
for $507.75 issued
https://www.righttoknow.org.au/request/4820/response/13308/attach/2/FOI%2024561%20C
harges%20notice.pdf
2
The same data, but for a one month period here, amazingly gets a $403.45 charges levy.
DVA Information Law employee’s math is either genuinely terrible (even for lawyers) or this is
yet another example in the long list of DVA charges notices where the assessment bears no
relationship to the work involved, but is merely a reflection of the amount of DVA’s unwilling to
legitimately deal with the FOI request in accordance with the law.
The calculations are clearly fictional, being inconsistent with previous calculations, lack any
evidentiary basis let alone reasonable description, and are thus challenged accordingly…
8.
On 9 November 2018, the Department issued you with a decision that advised the charges remained
payable (
Charges Decision).
9.
On 21 November 2018, you applied for external review of the Department’s decision to apply
charges to your FOI request (MR18/00907 refers). In your application you noted:
A charges notice was issued by DVA on 25 October 2018 and the charges were contested as
wrongly calculated the same day.
https://www.righttoknow.org.au/request/4882/response/13330/attach/4/FOI%2025062%20C
harges%20notice.pdf
Unlike the other IC review submitted today, DVA acknowledged the contested status but re-
issued the charges notice as a charges decision anyway on 9 November 2018:
https://www.righttoknow.org.au/request/4882/response/13448/attach/4/FOI%2025062%20C
harges%20decision.pdf
The grounds of objection are provided here:
https://www.righttoknow.org.au/request/spoc_referral_statisics_for_july#outgoing-9992
This is one of multiple charges notices issued by DVA to me that have involved spurious and
excessive charges that bear no realistic relationship to the work involved.
The FOI Guidelines explain that the decision to impose a charge is discretionary and any
charges must be fair, accurate and should not be used to unreasonably hinder an applicant
from pursuing an FOI request. Further, 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.
The FOI Guidelines further explain that in exercising the discretion to impose a charge, an
agency should take into account the ‘lowest reasonable cost objective’ in s 3(4) of the FOI Act,
which provides that ‘functions and powers given by this Act are to be performed and exercised,
as far as possible, to facilitate and promote public access to information, promptly and at the
lowest reasonable cost’.
3
Under s 55D(1) of the FOI Act, it is the agency that bears the onus of establishing that the
decision given in respect of the request is justified.
Because of the above, the Information Commissioner must be satisfied that a charge is
accurate and fairly reflects the work involved.
An underlying assumption in calculating processing time is that the officers involved in this
process are skilled and efficient. For example, it is assumed that an officer who is preparing
material has appropriate knowledge and expertise to carry out the activity efficiently.
In the recent IC review decision of 'ND' and Department of Human Services (Freedom of
information) [2017] AICmr 119, the Information Commissioner considered the use of a charges
calculator in estimating the cost of processing a request. This and various other IC review
decisions, together with the FOI Guidelines, emphasise that ‘[w]here a decision is made to
utilise the charges calculator to estimate a charge, the agency or minister should examine a
sample of the relevant documents and adjust the parameters of the charges calculator
accordingly.’
I also note that a earlier Information Commissioner decision ruled that agencies could not
charge applicants for any time the agency took on verifying and confirming figures as
applicants are not paying for the agency assurance activities, which are predominantly for their
own benefit.
I also note that the information Commissioner has previously made IC decisions relating to the
use of ‘fractional’ hours to essentially create a charge - particularly in this case where DVA have
decided to charge for a EL1 (Assistant Director) Information Law lawyer to carry out basic
tabulation work that an APS 3 or APS 4 could carry out (being within their work standards). I
note in earlier charges notices DVA use to charge $20/h for such work, but has tripled these
costs of late by charging for Executive Level lawyers in Information Law when realistically the
work is actually carried out by much lower level employees in the respective business area,
therefore the charges are in bad faith.
Also, I note the charges decision is invalid, as it does not meet the requirements of s 26(1)(b)
and FOI Guideline 3.181, as it does not include the required information to identify the decision
maker (without further research), which as per the OAIC ICON circular of 8 June 2018 (which
was circulated to agencies including DVA), states “where the decision relates to a document of
an agency, the decision notice needs to include the name and designation of the person making
the decision, including the decision maker’s first name, surname and title, to clearly explain
their authority to make the decision”.
This required information is not merely incidental to an FOI decision but integral - it is provided
so the receiver knows who to contact about the decision, and to determine whether the person
who issued it is in fact authorised to do so (such as by independently checking the agency’s FOI
4
delegations/authorisations list). It is simply not enough to assert that the agency knows who
issued the decision, or is confident they are authorised to do so - it is not a question for the
agency alone to determine…
10.
On 6 May 2019, the Department received a notice under section 54Z of the FOI Act from the OAIC,
advising of the IC Review. In response, the Department has elected to issue you with a revised
decision.
Decision
11.
I have made a decision to vary the original decision made by Julie (Position Number 62212962), Legal
Officer, Information Law Section, to apply charges in the amount of $403.45 to process your FOI
request.
12.
I have decided that charges do apply, but that the charges payable amount to $145.84. This takes
into account a 50 per cent reduction of the overall charge of $291.68, in the interests of resolving the
related IC Review. A deposit of $36.46 is required.
Material taken into account
13.
I have taken the following material into account in making my revised decision:
The terms of your FOI request dated 13 October 2018;
Your response to the Charges Notice issued 25 October 2018;
The Charges Decision issued 9 November 2018;
Your application for Information Commissioner Review of the charges applied to FOI 25062
dated 22 November 2018;
Information in relation to other FOI requests where you have requested the same or similar
data for different periods of time (FOI reference numbers 21147, 23863, 24561 and 25062);
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally enforceable
right to obtain access to information held by the Government of the Commonwealth;
The
Freedom of Information (Charges) Regulations 1982 (
Charges Regulations) (which continue
to apply in relation to a request for access to a document made before the commencement of
the
Freedom of Information (Charges) Regulation 2019 on 21 March 2019);
The Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
FOI Guidelines); and
5
The IC reviews and AAT decisions of
‘ND’ and Department of Human services (Freedom of
Information) [2017] AICmr 119 (20 November 2017),
MacTiernan and Secretary, Department of
Infrastructure and Regional Development (Freedom of Information) [2015] AATA 584,
Australian Associated Press Pty Ltd and Department of Foreign Affairs and Trade [2017] AICmr
131 and
Jon Patty and Attorney-General’s Department (Freedom of Information) [2018] AICmr
28 (2 March 2018).
14.
A full extract of all provisions I used to make my decision are provided in
Schedule 1.
Reasons for Decision
15.
Two matters are raised by the IC Review 54Z notice which I have further considered in this
section 55G decision, namely:
a. the assessment of the charge for processing your FOI request under the Schedule to the
Charges Regulations; 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 (in accordance with section 29(5)(b) of the
FOI Act).
16.
I have also had regard to whether the decision to impose a charge on you would cause you financial
hardship (in accordance with section 29(5)(a) of the FOI Act) and whether it would be appropriate in
the circumstances to apply a reduction of the charge in the interests of resolving your application for
IC Review.
Assessment of charges
17.
Item 2 of Part 1 of the Schedule to the Charges Regulations sets out the charges applicable in respect
of search and retrieval time and specifies a rate of $15.00 per hour for the search and retrieval of a
document.
18.
Item 3 of Part 1 of the Schedule to the Charges Regulations provides that an agency can charge an
amount not exceeding the actual cost incurred by the agency in producing a document that is not
available in a discrete form in the documents of the agency.
19.
I have reviewed the charges calculated for the processing of your FOI request and consider the
charge set out in Schedule 2 to the Charges Decision to have been incorrectly stated. Specifically, it
applies an hourly rate of $59.77 for the search and retrieval of information rather than for the actual
cost incurred by the agency in producing a document in circumstances where the request relates to
information that is not available in a discrete form. I have also adjusted the charge to reflect the
actual number of referrals made in July 2018, whereas the original Charges Decision was based on an
estimate of referrals.
6
20.
I have assessed the charges applicable for the processing of your FOI request and have detailed in
Schedule 2 of this section 55G decision the correct charges.
21.
I provide the following by way of explanation as to the calculation of the charges in Schedule 2:
a. No charges have been calculated for the searching and retrieving a document of the agency (as
specified in Item 2 of Part 1 of the Schedule to the Charges Regulations) on the basis that the
document to which access is sought by your FOI request is not a document held by the
Department;
b. Charges have been calculated in accordance with Item 3 of Part 1 of the Schedule to the
Charges Regulations being the actual cost incurred by the agency in producing a document
responsive to your FOI request, that is not available in a discrete form in the documents of the
Department;
c. To assist with the revised decision I confirmed there were a total of 96 referrals for the month
of July 2018. At a rate of 3 minutes to access/review each record and an additional 5 minutes to
arrange the overall data, it is expected to take 293 minutes (4.88 hours) to create the
document as requested;
d. The actual costs involved in producing a document responsive to your FOI request requires an
EL1 to undertake. The hourly rate I have applied is derived from the Department’s Enterprise
Agreement;
e. No charges have been applied for the first five hours of time spent in making an access decision
(in accordance with Item 5 of Part 1 of the Schedule to the Charges Regulations); and
f. No charges have been imposed under Part 2 of the Charges Regulations for accessing the
document.
Discretion to impose charges
22.
In relation to the discretion to impose a charge set out in clause 3(1) of the Charges Regulations, I
have had regard to the objects of the FOI Act which, relevantly, require an agency to perform and
exercise the powers and functions given by the FOI Act, as far as possible, to facilitate and promote
public access to information, promptly and at the lowest reasonable cost. In that regard, I note the
IC’s review decision in
McBeth and Australian Agency for International Development [2012] AICmr 24
at paragraph [15] where the Information Commissioner found that an agency’s decision to use the
charge rates specified in the Schedule to the Charges Regulations did not mean that the agency had
not applied the ‘lowest reasonable cost’ objective in calculating the charge.
7
23.
I have also had regard to those factors set out in paragraph [4.4] of the FOI Guidelines and in the
IC review decision of
‘ND’ and Department of Human Services (Freedom of Information) [2017] AICmr
119 (in particular, paragraph [15]) when deciding to impose a charge, including:
a. the cost to you, the cost to the agency in calculating and collecting the charge and the likely
costs of this review; and
b. the amount of time required by an appropriately qualified officer of the agency to process your
FOI request, create the document to which access is sought and make a determination.
24.
In order to satisfy myself that the charge is fair and accurate, I have had also had regard to the
information provided to you in our consultation notice for FOI 23863, where you requested the same
data, but for a period of three financial years. That charges notice took into account the actual costs
incurred for staff to retrieve, search and create the document in the format you requested. As you
know, the result of FOI 23863 was to revise the data to the month of June 2018. That request was
processed and a document issued to you. I have also considered other previous FOI requests where
you have requested the Department create documents for the same/similar type of data (FOI 21147,
24561 and 25062 refers). Any consideration of how this revised decision may impact on other
applicable IC Reviews in relation to any of those previous matters will follow.
25.
Your request is specific, in that you have asked the Department to create a document for you. Having
reviewed the above and having conducted further enquiries with the relevant business areas who
can assist with your request, I am satisfied that it would take an estimated 4.88 hours to process this
specific request, with additional decision making time that is not to be charged for. I am also satisfied
that the application of a charge to process your request is reasonable in the circumstances.
26.
As I have detailed at
Schedule 2, the Department will charge the actual costs involved for an EL1 to
process your request (in accordance with the Charges Regulations Schedule Part 1 Item 3).
Whether or not to reduce or not to impose a charge
27.
Section 29(5) of the FOI Act sets out a number of matters an agency must take into account in
determining whether or not to reduce or not to impose a charge.
28.
The first of those factors set out in section 29(5)(a) requires the agency to have regard to whether
the payment of the charge, or part of the charge, would cause you financial hardship. As you have
not advised, either through the original FOI process or through the IC Review, that payment of the
charge would cause you financial hardship, I have not considered a waiver or reduction on the basis
of financial hardship.
29.
The second of those factors set out in section 29(5)(b) requires the agency to consider whether the
giving access to the document in question is in the general public interest or in the interest of a
substantial section of the public.
8
30.
Paragraph [4.81] of the FOI Guidelines state that an applicant relying on section 29(5)(b) of the
FOI Act should identify or specify the ‘general public interest’ or the ‘substantial section of the public’
that would benefit from the disclosure of the document and lists a number of matters to be
considered. You have not raised any such matters in your correspondence to the Department dated
25 October 2018, nor in your application to the IC for external review dated 21 November 2018.
31.
I have had regard to paragraph [4.83] of the FOI Guidelines and the decisions of
Australian
Associated Press Pty Ltd and Department of Foreign Affairs and Trade [2017] AICmr 131 and
Jon Patty
and Attorney-General’s Department (Freedom of Information) [2018] AICmr 28 and the examples
provided of circumstances where the giving access to information may be in the general public
interest or in the interests of a substantial section of the public, for example:
a. the document relates to a matter of public debate or a policy issue under discussion within the
agency and disclosure of the document would assist the public comment or participate in the
debate or discussion – I do not consider this public interest consideration applies in this
instance. The number of the Department’s clients referred to the Coordinated Care Unit (CCU)
and Client Liaison Unit (CLU) (now known as the Managed Access Program - MAPs) is not a
matter of public debate, nor is it a policy issue currently being discussed by the Department;
b. the document relates to an agency decision that has been a topic of public interest or
discussion – this public interest consideration does not apply in this instance;
c. the document would add to the public record on an important and recurring aspect of agency
decision making – this public interest consideration does not apply in this instance;
d. the document is to be used for research that is to be published widely or that complements
research being undertaking in an agency or elsewhere in the research community – so far as I
am aware, this public interest consideration does not apply in this instance;
e. the document is to be used by a community or non-profit organisation in preparing a
submission to a parliamentary or government inquiry – so far as I am aware, this public interest
consideration does not apply in this instance;
f. the document is to be used by a member of Parliament in parliamentary or public debate on an
issue of public interest or general interest in the member’s electorate – so far as I am aware,
this public interest consideration does not apply in this instance; and
g. the document is to be used by a journalist in preparing a story for publication that is likely to be
of general public interest – again, so far as I am aware, this public interest consideration does
not apply in this instance.
9
32.
I accept that the functions of the Department’s CCU and MAPs may be of interest to some members
of the public, and clients of the Department and members of their family particular. I note that some
clients have their contact and affairs managed through those mechanisms. However, I do not
consider the number of clients of the Department being referred to the CCU or MAPs during the
month of July 2018 to be in the general public interest or in the interest of a substantial section of
the public.
33.
Information about coordinate client support, which encompasses CCU and MAPs, is publicly available
on the Department’s website, including the Department’s policy on unreasonable Complainant
Conduct, which can apply to clients referred to and/or managed by MAPs. Additionally, further
information about MAPs is made available to those clients of the Department whose access is to be
managed through that unit.
34.
In light of the above I do not consider a public interest consideration applies as contemplated in
section 29(5) of the FOI Act.
Discretion to reduce the charge
35.
Notwithstanding the above, in the interests of resolving this IC Review, I have decided to apply a
50 per cent discount to the applicable charges. This reduction brings the total charges payable down
from $291.68 to $145.84.
Your liability to pay a charge
36.
As the charges is more than $100.00, you will need to pay a deposit of $36.46 (which is 25 per cent 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 Charges Regulations.
37.
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 charges is less than the deposit paid.
38.
On payment of the charges in full, or the required deposit, processing of your request will
commence. Payment can be made by:
(a) forwarding a cheque for the required amount to:
Post:
Legal Services & Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Required Reference: FOI25062/Verity Pane
or
10
(b) paying by electric funds transfer directly into the Department’s banking account using the
following details:
Account name:
Reserve Bank of Australia
BSB:
092009
Account number:
112084
Required Reference: FOI25062/Verity Pane
Access to the document
39.
The Department will process your request once the deposit (or the full charges if you prefer) is
received. If you pay the deposit, the document will not be released to you until payment of the
remaining charges has been made.
Application for Information Commissioner Review — Request to withdraw application
40.
In light of my decision to revise the charges applicable to your FOI request, I request that you
consider withdrawing your application for IC Review of FOI 25062.
Your rights of review
41.
If you are dissatisfied with my decision, you may advise the Information Commissioner that you do
not wish to withdraw your application for Information Commissioner review.
42.
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
43.
If you wish to discuss this decision, please do not hesitate to contact me using the following details:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, BRISBANE QLD 4001
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely
Leia (Position Number 62210022)
Assistant Director
Information Law Section / Legal Services and Audit Branch
Integrity, Assurance and Communications Division
24 May 2019
11
FOI
Schedule 1
Schedule of relevant provisions in the FOI Act
3 Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by the
Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy by
contributing towards the following:
(c) increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(d) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held by
the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be performed
and exercised, as far as possible, to facilitate and promote public access to information,
promptly and at the lowest reasonable cost.
11 Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in accordance
with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the
following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with this
Act, subject to this section.
12
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the document at
a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response
to a request (see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on
balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the
document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the document at
a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
23 Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be made,
on behalf of the agency, by the responsible Minister or the principal officer of the agency or,
subject to the regulations, by an officer of the agency acting within the scope of authority
exercisable by him or her in accordance with arrangements approved by the responsible
Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body that
is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or body by
the principal officer of that court, tribunal, authority or body or, subject to the regulations, by
an officer of that court, tribunal, authority or body acting within the scope of authority
exercisable by him or her in accordance with arrangements approved by the principal officer of
that court, tribunal, authority or body.
26 Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document, the
decision-maker shall cause the applicant to be given notice in writing of the decision, and the
notice shall:
(a)
state the findings on any material questions of fact, referring to the material on which
those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt document—
include in those reasons the public interest factors taken into account in making the
decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to
the public interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
13
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature that its
inclusion in a document of an agency would cause that document to be an exempt document.
(see section 11A).
29
Charges
(1)
Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a
charge in respect of a request for access to a document, or the provision of access to a document,
the agency or Minister must give to the applicant a written notice stating:
(a) that the applicant is liable to pay a charge; and
(b) the agency's or Minister's preliminary assessment of the amount of the charge, and the
basis on which the assessment is made; and
(c) that the applicant may contend that the charge has been wrongly assessed, or should be
reduced or not imposed; and
(d) the matters that the agency or Minister must take into account under subsection (5) in
deciding whether or not to reduce, or not impose, the charge; and
(e) the amount of any deposit that the agency or Minister has determined, under the
regulations, that the applicant will be required to pay if the charge is imposed; and
(f) that the applicant must, within the period of 30 days, or such further period as the agency
or Minister allows, after the notice was given, notify the agency or Minister in writing:
(i) of the applicant's agreement to pay the charge; or
(ii) if the applicant contends that the charge has been wrongly assessed, or should be
reduced or not imposed, or both--that the applicant so contends, giving the
applicant's reasons for so contending; or
(iii) that the applicant withdraws the request for access to the document concerned;
and
(g) that if the applicant fails to give the agency or Minister such a notice within that period or
further period, the request for access to the document will be taken to have been
withdrawn.
(2)
If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f)
within the period or further period mentioned in that paragraph, the applicant is to be taken to
have withdrawn the request for access to the document concerned.
(3)
An agency or Minister must not impose a charge in respect of a request for access to a document,
or the provision of access to a document, until:
(a) the applicant has notified the agency or Minister in a manner mentioned in paragraph
(1)(f); or
(b) the end of the period or further period mentioned in that paragraph.
(4)
Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph
(1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency
or Minister may decide that the charge is to be reduced or not to be imposed.
(5)
Without limiting the matters the agency or Minister may take into account in determining whether
or not to reduce or not to impose the charge, 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 application 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.
14
(6)
If the applicant has notified the agency or Minister in the manner mentioned in subparagraph
(1)(f)(ii), the agency or Minister must take all reasonable steps to enable the applicant to be
notified of the decision on the amount of charge payable as soon as practicable but in any case no
later than 30 days after the day on which the applicant so notified the agency or Minister.
(7)
If:
(a) that period of 30 days has elapsed since the day on which the agency or Minister was so
notified; and
(b) the applicant has not received notice of a decision on the amount of charge payable;
the principal officer of the agency, or the Minister, as the case requires, is, for all purposes of this
Act, taken to have made, on the last day of the period, a decision to the effect that the amount of
charge payable is the amount equal to the agency's or Minister's preliminary assessment of the
amount of the charge mentioned in paragraph (1)(b).
(8)
If:
(a) the applicant makes a contention about a charge as mentioned in subsection (4); and
(b) the agency or Minister makes a decision to reject the contention, in whole or in part;
the agency or Minister, as the case requires, must give the applicant written notice of the decision
and of the reasons for the decision.
Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a
statement of reasons.
(9)
A notice under subsection (8) must also state the name and designation of the person making the
decision and give the applicant appropriate information about:
(a) his or her rights with respect to review of the decision; and
(b) his or her rights to make a complaint to the Information Commissioner in relation to the
decision; and
(c) the procedure for the exercise of those rights;
including (where applicable) particulars of the manner in which an application for internal review
(Part VI) and IC review (Part VII) may be made.
(10) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision
referred to in subsection (8).
(11) A notice under subsection (8) is not required to contain any matter that is of such a nature that its
inclusion in a document of an agency would cause that document to be an exempt document.
55G
Procedure in IC review--revocation or variation of access refusal decision
(1)
An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original
decision ) in relation to a request or an application under section 48 at any time during an IC review
of the access refusal decision if the variation or substitution (the revised decision ) would have an
effect of:
(a) giving access to a document in accordance with the request; or
(b) relieving the IC review applicant from liability to pay a charge; or
(c) requiring a record of personal information to be amended or annotated in accordance with
the application.
Note: When making the revised decision, a consultation requirement under section 26A (documents
affecting Commonwealth-State relations etc.), 27 (business documents) or 27A (documents affecting
personal privacy) may apply.
(2)
If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under
subsection (1):
(a) the agency or Minister must, in writing, notify the Information Commissioner as soon as
practicable after the agency or Minister makes the variation or substitution; and
(b) the Information Commissioner must deal with the IC review application for review of the
original decision as if it were an IC review application for the review of the varied or
substituted decision, subject otherwise to this Part.
15
