FOI
Charges notice made under the Freedom of Information Act 1982
Decision to impose a charge and preliminary assessment of charge of
Leia (Position Number 62210022), Information Law Section, Legal Services and Assurance
Branch, Department of Veterans’ Affairs
Applicant:
Julie (Right to Know)
Decision date:
21 December 2018
FOI reference number:
FOI 25907
Sent by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Julie,
Summary
1.
I have made a decision to impose a charge in the amount of $299.08 to process your request.
Authority to issue this notice
2.
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 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 (
FOI Act).
Background
3.
On 15 November 2018, you made a request under the FOI Act for access to documents in the
Department’s possession. Your request was made in the following terms:
“As part of the recent Senate Estimate hearings, which senior executives of the Department
appeared before, the Department prepared a series of briefs and talking point packages for
those appearing to refer to, and quote from, during proceedings
I request, under FOI, copy of these briefs. While some of the contents would have been
repeated by those subject to questioning by the Senate Estimates Committee, not everything
briefed on gets said, as it is decided by what the Committee members ask, not what those
being questioned wish for.
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I note that as briefing material for Senate Estimates is all prepared on the basis it may be
stated during these public proceedings, clearance for FOI release should be reasonably
straightforward, and given the recency of Senate Estimates, should be able to be quickly
located…”
4.
On 17 December 2018, the Department wrote to you providing a notice of intention to refuse your
request under section 24AA of the FOI Act. This notice was issued on the basis that a practical refusal
reason existed as your request did not provide enough information as was reasonably necessary to
enable the Department to identify the documents sought.
5.
Since issuing you the notice, the Department has identified 77 documents comprising 345 pages,
being the Senate Estimate Briefs. After a review of both the terms of your request and the available
documentation, I am of the view that the Senate Estimate Briefs satisfy the terms of your request
and that a practical refusal reason no longer exists.
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 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 $299.08. A breakdown of this charge, as well as the basis on which
the assessment is made, is provided for in detail at
Schedule 1.
Deposit
8.
As the charge is more than $100.00, you will need to pay a deposit of $74.77 (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.
10.
Please note that payment of a charge does not guarantee access to the documents, in full or in part.
If you disagree with the Department’s decision to impose a charge or the preliminary
assessment of charges
11.
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.
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12.
Section 29(5) of the FOI Act requires me to take into account the following matters in deciding
whether a charge should be reduced or not imposed:
whether payment of the charge, or part of it, would cause you financial hardship;
whether giving access to the document are 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
13.
You have 30 days to respond in writing to this notice. We therefore expect a response from you by
close of business 21 January 2019. In accordance with section 29(1)(f) of the FOI Act, by that date,
you must do one of the following things in writing:
agree to pay the charge;
contend that the charge has been wrongly assessed, or should be reduced or not
imposed and explain your reasons; or
withdraw your request.
14.
Please send your response, including payment of the charge in full or the required deposit to:
Post:
Legal Services & Assurance Branch
Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Required reference:
FOI25907/Julie (Right to Know)
15.
If you prefer to pay by electronic funds transfer directly into the Department’s bank account, the
details are:
Account name:
DVA Departmental Head Account
BSB:
092009
Account number:
112084
Required reference:
FOI25907/Julie (Right to Know)
16.
In accordance with section 31 of the FOI Act, 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 the Department makes a decision not to impose a charge.
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17.
If you contend that a charge should be reduced or not imposed and the Department confirms that a
charge is payable (either the original amount or a reduced amount), the time limit for processing
your request would resume on the day you pay that charge (in full or the required deposit).
18.
In accordance with section 29(2) of the FOI Act, if you fail to respond within 30 days from the date of
this notice, your request for access to the documents will be taken to have been withdrawn.
19.
In the event that the actual charges are less than this estimate, you will only be liable for the lesser
amount. If the actual charges are more than this estimate, then you will only be liable for the lesser
amount notified in this estimate, unless the Department releases every document to you in full, in
which case it may impose the higher actual charges.
Your rights of review
20.
Please note this is not a charges decision and as such, review rights are not yet available. Depending
on the outcome of this notice, you will be advised of your review rights either through a subsequent
charges decision, or through a decision on your request, should the charges be paid in full or the
deposit received.
21.
More information about charges can be found in section 29 of the FOI Act and Chapter 4 of the
Office of the Australian Information Commissioner FOI Guidelines:
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-4-charges-for-providing-access
Contact us
22.
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 Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely
Leia (Position Number 62210022)
Assistant Director
Information Law Section | Legal Services & Assurance Branch
Legal Assurance and Governance Division
21 December 2018
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FOI
Schedule 2
Schedule of relevant provision in the FOI Act
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.
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(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.
(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.
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