FOI ref: 2020/0016
18 May 2020
Mr John Smith
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith,
Notice of charge decision following applicant contention that charge be reduced or
not imposed (s 29(8))
I refer to your email of 16 April 2020 in which you requested a waiver of charges pursuant to
section 29(5)(b) of the
Freedom of Information Act 1982 (FOI Act), on the grounds of public
interest.
I am an authorised officer under section 23(1) of the FOI Act to make decisions in relation to
FOI requests.
I have decided to vary the original assessment of the charge by reducing it by $195. The
amount you are liable to pay is $6,023.
The reasons for my decision under section 29(4) are set out below.
Reasons for my decision
Refined request
On 16 April 2020 you contended that the charge of $6,218 was incorrectly assessed
because you had further revised your request on 26 March 2020. The AAT confirms that no
correspondence was received by you in relation to this request on 26 March 2020 therefore
our assessment of the charge has not changed and is based on your request as refined by
your email of 18 March 2020.
Location of records
You also stated in your email that the assessment of the charge is based on inefficient of
record keeping practices at the AAT.
According the FOI Guidelines issued by the Office of the Australian Information
Commissioner (OAIC), an agency can charge for ‘the time spent … in searching for or
retrieving the document’. 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
The underlying assumption in calculating search and retrieval time is that an agency should
maintain a high quality record system. The AAT maintains such a system suited to its
function of reviewing administrative decisions and corporate support of that function.
Search and retrieval time is to be calculated on the basis that a document will be found in
the place indicated in the agency’s filing system (regulation 5(2)(a)) or, if no such indication
is given, in the place that reasonably should have been indicated in the filing system
(regulation 5(2)(b)). Time used by an officer in searching for a document that is not where it
ought to be, or that is not listed in the official filing system, cannot be charged to an
applicant.
I have estimated the time needed for the search and retrieval of the requested documents
and found that it would take approximately 13 hours. This is based on a search for
documents in the place where the documents ought to be, in the official filing system. For
example, it involves a search of:
• the AAT’s official financial database for a report that details the amount the AAT
spends on the procurement of labour hire staff for the 2019 calendar year;
• the email accounts of both Ms Clemens and Mr Sutton using key words and by
refining searches to the date ranges specified in the request;
• the archived tapes for the emails of both Ms Clemens and Mr Sutton;
• the AAT’s contract database for a copy the contracts for the requested entities;
• the AAT’s register of policies and procedures.
A large proportion of the charge for search and retrieval is allocated to the collation of
emails, contracts and reports, including printing, sorting and assessment of scope. You have
asked specifically for
any email correspondence between two AAT officers and labour hire
agencies and
any emails mentioning the public service code of conduct. These documents
will be properly located in the mailboxes of the two officers. While copies of some documents
may also be properly located on other corporate files, this will not include documents that do
not need to be retained by the agency and you have asked for
any documents. It follows
that the email accounts are the correct repositories. Moreover, your request, as refined on
18 March 2020, specifically includes documents held in the deleted/archived emails of the
two officers; the search and retrieval in the estimated charge time includes the technical
recovery of those emails from back-up tapes.
The officers, whose emails you request, are likely to have emails including the search terms
‘section 6 of the public service act’ or ‘public service code of conduct’ that are unrelated to
contract labour firms. The identification of emails within the scope of your request, collation,
consultation and redaction of these emails is included in the time charged.
You have also asked that any charge be waived, as you consider release of the documents
you have requested to be in the public interest.
Section 29(5) of the FOI Act provides that an agency, when determining whether or not to
reduce or not to impose a charge, must take into account the following:
(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.
2
My considerations of these are provided below.
Financial hardship
Under the FOI Act, I am required to take into account whether the payment of the charge, or
part of it, would cause financial hardship to you. Financial hardship is defined in the FOI
Guidelines as:
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.
As you have not relied on this ground in your submission of 16 April 2020, I have placed little
weight on this. Without seeing evidence of financial hardship or an argument in support of
this contention, I have concluded that the payment of this charge would not cause you
financial hardship.
Public interest
Section 29(5)(b) of the FOI Act requires me to address 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 your email of 16 April 2020, you stated that:
…the fee ought to be waived in this instance. Labour hire usage throughout the APS
is a matter of significant public concern and debate, I ask that the processing charge
in this instance be waived. The attached links demonstrate that fact.
Although you have asserted that labour hire usage throughout the APS is a matter of
significant public concern and debate, it is not clear how the particular documents requested
will assist in this regard. The documents you have requested relate to specific labour hire
providers and staff of the AAT and do not appear sufficiently representative, or necessary, to
throw light on any issue of public debate regarding labour hire services.
The AAT publishes figures in relation to contractors and consultants in its Annual Reports.
The provision of individual contracts which contain personal, business and commercial
information would be of little value to a substantial section of the public and do not add to
any public discussion. In this regard, I note that the articles that you referred to in your email
of 16 April 2020 report on the ratio of APS staff with labour hire contractors in the Australian
Public Sector and that the AAT Annual Report already provides the costs of its contractors
separately from those of its staff. Information contained in the particular documents
requested, contracts and emails about individual arrangements, have not been a topic of
public interest or discussion and nor do the documents explain any particular decision made
by the AAT.
Nevertheless, I also note that the cost of labour hire procurement may be of interest to
persons other than yourself and for this reason, I have reduced the charge by $195 in
relation to processing of certain procedural documents.
Decision
For the reasons listed above, I have decided to vary the original assessment of the charge
by $195. The amount you are liable to pay is
$6,023.
3
Your review rights
If you are dissatisfied with my decision in relation to the charge, you may apply for internal
review or Information Commissioner review of the decision. We encourage you to seek
internal review as a first step as it may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to AAT for an internal review of my
decision. The internal review application must be made within 30 days of the date of this
letter.
Where possible please attach reasons why you believe review of the decision is necessary.
The internal review will be carried out by another officer within 30 days.
Information Commissioner review
Under section 54L of the FOI Act, you may apply directly to the Information Commissioner to
review my decision. An application for review by the Information Commissioner must be
made in writing within 60 days of the date of this letter, and be lodged in one of the following
ways:
onli
ne:https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
email:
xxxxx@xxxx.xxx.xx
post: GPO Box 5218 Sydney NSW 2001
More information about Information Commissioner review is available on the Office of the
Australian Information Commissioner website. Go to
https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/information-commissioner-review/.
Questions about this decision
If you have any questions or wish to discuss this decision with us, please contact me at
xxx@xxx.xxx.xx.
Yours sincerely,
[Signed]
Skye M Authorised FOI Officer (APS 6)
4
