PO Box 7820 Canberra BC ACT 2610
19 September 2019
Our reference: LEX 46187
Justin Warren
Right to Know
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Warren
Freedom of Information Request – Reconsideration of Charges
I refer to your email dated 20 August 2019, contending that a charge should not be imposed
in relation to your Freedom of Information (
FOI) dated on 29 July 2019.
Your request under the
Freedom of Information Act 1982 (
FOI Act), was for access to
documents in the following terms:
I request a copy of the Privacy Impact Assessment reference number 21987 titled
"DHS Response to the Independent Review of Health Providers’ Access to Medicare
Card Numbers" as listed on the department's Privacy Impact Assessment Register.
Background
On 20 August 2019, you were notified that you are liable to pay a charge for the processing
of your request and that the preliminary assessment of that charge was $106.15 (
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): 3.58 hours,
$91.60
at $20.00 per hour
TOTAL
$106.15
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in
the calculation.
On 20 August 2019, you provided submissions in support of your reconsideration request.
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Decision
I have now reconsidered the charge notified to you on 20 August 2019. My decision is
below.
What I took into account
In reaching my decision on reconsideration of the charge, I took into account:
your original request dated 29 July 2019;
the department’s correspondence dated 20 August 2019, notifying you of the charge;
your reconsideration request dated 20 August 2019, contending that the charge
should not be imposed;
the documents falling within the scope of your request;
consultations with departmental officers about:
o the nature of the requested information; and
o the department's operating environment and functions;
relevant case law;
the FOI Act;
the
Freedom of Information (Charges) Regulations 2019 (
Regulations); and
the Guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (
Guidelines).
Reconsideration of the charge
I have reconsidered the preliminary charge that was notified to you on 20 August 2019.
I acknowledge that your reasons for seeking reconsideration of the charge are based on the
calculation of the charge and whether release of the document in question is in the general
public interest or in the interest of a substantial section of the public.
Calculation of the preliminary charge
I acknowledge that your first reason for seeking reconsideration of the charge is based on
the processing time of the request. Therefore, for the sake of completeness, and to consider
the application of the charges in response to your request wholly anew, I have reconsidered
the calculation of the preliminary charge that was notified to you.
In response to your request, the department conducted searches of its records and identified
one document, totalling 40 pages, to be within scope of your request.
In relation to a preliminary estimate of charges, paragraph 4.51 of the Guidelines states:
The notice to an Applicant under s 29(1) of an agency or minister’s preliminary
assessment of a charge can include an estimated charge, if all steps necessary to make
a decision on the request have not yet been taken (reg 9(2)). In practice, the preliminary
assessment may be based on two elements:
a charge (based on the Charges Regulations) for work already done by the
agency or Minister, for example, in search and retrieval of documents
an estimated charge for work still to be done.
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Department of Human Services
I have reconsidered the calculation of the charge and consider that the original charge
notified to you on 20 August 2019 did not accurately reflect:
the time actually spent on document search and retrieval; and
the estimate of the time still required to process the relevant document and make
a decision in respect of your request.
I consider that the following charge of $55.30
(
revised charge) is an accurate reflection of
the time already spent processing your request, and of the estimate of time still required for
work to be completed by the department. This charge is calculated as follows:
Search and retrieval time: 0.46 hours, at $15.00 per hour
$6.90
Consultation with one third party: 1 hours, at $20.00 per hour
$20.00
Decision-making time, (*after deduction of 5 hours): 1.42 hours,
$28.40
at $20.00 per hour
TOTAL
$55.30
Paragraph 4.5 of the Guidelines notes that ‘charges should fairly reflect the work involved in
providing access to documents on request’.
I consider that this new calculation has complied with the lowest reasonable cost objective
under section 3(4) of the FOI Act, and that it fairly reflects the work involved in processing
your request. I am satisfied with the charge of $55.30.
Reconsideration of the charge – Financial hardship and the public interest
Section 29(5) of the FOI Act provides that, without limiting the matters that the agency may
take into account when making a decision about whether to reduce or not impose a
processing charge, the decision maker must consider:
whether payment of a charge, or part of it, would cause financial hardship to an
applicant; and
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 determining whether to reduce or waive the revised charge of $55.30, my consideration of
these matters is set out below.
Financial Hardship
I note that you have not provided any evidence to indicate that payment of the charge would
cause financial hardship. Therefore, I have decided not to reduce the charge on this basis.
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Department of Human Services
The Public Interest
Section 29(5)(b) of the FOI Act provides that an agency must also take into account whether
the provision of access to the document within scope of your request is either 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
relevant document and the context of its release.
Paragraphs 4.81 and 4.82 of the Guidelines also state:
An applicant relying on [the public interest ground of waiver] 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.
…
the applicant may be expected to draw a link between being granted access to the
documents and a derivative benefit to either the general public interest or a
substantial section of the public.
In your request for reconsideration, dated 20 August 2019, you contend that public interest
factors are relevant to this request. You have raised the following points:
The department has acknowledged that the Privacy Impact Assessment (
PIA) is
conducted on all projects that:
o involve a significant change to how the department manages personal
information
o might have a significant impact on the privacy of individuals.
Due to the large number of people who have a Medicare card, there is an interest in
how personal information is stored and accessed by Health Providers.
Consideration of the public interest
I have had regard to paragraph 4.79 of the Guidelines, which relevantly provides:
This test is different to and to be distinguished from public interest considerations that
may arise under other provisions of the FOI Act.
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 in scope of your
request. This requires me to consider the nature of the document and the context
surrounding its potential release.
I recognise that the issue to which your request relates, the ‘independent review of Health
Providers’ Access to Medicare Card Numbers’, and the very nature of the creation of a PIA,
is a matter of public interest.
On this basis, I am persuaded that to reduce the charge would be in the general public
interest or the interest of a substantial section of the public.
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Department of Human Services
Other considerations
The general principle underpinning the charges mechanism under section 29 of the FOI Act
was described by O’Connor J in Re Herald & Weekly Times and Secretary, Department of
Finance and Administration [2000] AATA 506 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.
This is reinforced in Tennant and Australian Broadcasting Corporation [2014] AAT 452,
where the Administrative Appeals Tribunal stated [14]-[15], when reviewing the principles
and considerations in relation to the reduction or waiver of FOI processing charges:
One such matter is the intention discernible in the imposition of the charge that the
amount should reflect the time and effort involved in accessing the requested
documents… In other words, there is an intention that a user pays principle should
apply.
Accordingly, I am satisfied that the intention of the legislature in drafting the FOI Act was that
a portion of the cost of processing requests is to be borne by the Applicant.
I also note that the charges associated with FOI requests are not designed to be an
application fee or fee to access documents, rather, they are a fee that is designed to assist
the department to deal with the administrative burden of processing FOI requests.
Conclusion
I am satisfied that the revised charge accurately reflects the lowest reasonable cost for the
time it will take the department to process your request.
I am not persuaded that the charge should be reduced or waived on the grounds of financial
hardship, however I am persuaded to reduce the charge on public interest grounds.
Having regard to the factors detailed above, I have decided to reduce the charge to a total of
$27.65, being 50% of the lowest reasonable processing cost, as appropriate and reasonable
to provide you with a decision on access. I consider that this amount balances the fact that a
portion of the cost of processing FOI requests is to be borne by the Applicant with the fact
that there are public interest factors associated with this matter.
Time limits for processing your request
As you have paid the original required deposit of $26.55 on the same day you requested the
reconsideration of the charge, the department has continued to process your request while
undertaking this reconsideration.
You can expect a decision for your FOI request by 27 September 2019.
If documents are to be released to you, the department will require you pay the outstanding
amount of $1.10 before any documents are provided to you.
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Department of Human Services
Required Action
You should notify the department in writing within 30 days of receiving this notice that you:
A. agree to pay the charge; or
B. withdraw the request for access.
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
You may select from 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 46187; 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 46187 in this
correspondence.
Option B - withdraw your request
If you wish to withdraw your request, you may do so in writing.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx. Kind regards
Kaitlin
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services
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Department of Human Services
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.
You can
lodge your application:
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Department of Human Services
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.
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Department of Human Services
