PO Box 7820 Canberra BC ACT 2610
29 June 2020
Our reference: LEX 54082
Mr John Smith
By email only
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request – Reconsideration of Charges
I refer to your email dated 28 May 2020, contending that a charge should not be imposed in relation
to the processing of your request dated 2 April 2020, made under the
Freedom of Information Act
1982 (
FOI Act). Your request is seeking access to the following documents:
‘I wish to obtain a copy of the final report provided to Services Australia by McKinsey, in
association with the tender CN ID: CN3495657-A1
I also wish to obtain a copy of the powerpoint used by McKinsey to pitch for this contract
through the open tender.
(as can be seen here:
https:/ www.tenders.gov.au/Cn/Show/49b5eb53-0a75-cb6e-303b-
5e80d7d69919).’
Background
Services Australia conducted searches of its records and identified a document (the
requested
document) within the scope of your request.
On 28 May 2020, Services Australia notified you that in accordance with section 29 of the FOI Act,
you were liable to pay a charge for the processing of your request and that the preliminary
assessment of the charge was $99.00 (
preliminary charge).
The preliminary charge was calculated as follows:
Search and retrieval time: one hour, at $15.00 per hour:
$15.00
Decision-making time (after deduction of 5 hours*): 4.2 hours, at
$84.00
$20.00 per hour
TOTAL
$99.00
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
Reconsideration of the preliminary charge
On 28 May 2020, you responded to the preliminary charge notification, contending that the
preliminary charge should be reconsidered (the
reconsideration request). Your request was made
in the following terms:
‘I dispute this charge on two grounds.
The first ground is that it would cause undue financial hardship. I can provide evidence for
this if the department insists upon these fees.
The second ground is that usually applicable fees should be waived in this instance, as this
FOI request is within the public interest. $2.6M is a large amount of money for a consulting
contract; so there is a public interest in having full transparency regarding this transaction.
McKinsey's activities as a consultant has also been frequently scrutinised in the news media,
adding weight to the public interest in transparency regarding this transaction. Finally,
transparency regarding the management practices of Services Australia is particularly in the
public interest of late; given the public's reliance on Services Australia's systems during this
pandemic.
Lastly, I dispute the amount that has been calculated for this charge. It should not take
longer than 5 hours to search, consult, and evaluate the document. Certainly it should take
far less than 12 hours, and so I dispute the $99 charge.’
On 16 June 2020, Services Australia responded to your reconsideration request by asking you to
provide evidence of your financial hardship. Via email dated 17 June 2020, you provided a copy of a
low income health card.
I have now reconsidered the preliminary charge. I have decided to reduce the preliminary charge to
$61.00 as set out in the table below:
Search and retrieval time: 1 hour, at $15.00 per hour:
$15:00
Decision-making time (after deduction of 5 hours*): 2.3 hours,
$46.00
at $20.00 per hour
TOTAL
$61.00
I am satisfied that the reconsidered assessment of charges reflects the lowest reasonable cost to
provide you with a decision on access to the requested document. I have set out my reasons for
reaching this decision below.
What I took into account
In reaching my decision on the reconsideration of the charge, I took into account:
• the terms of your request dated 2 April 2020;
• the preliminary charge dated 28 May 2020;
• your reconsideration request dated 28 May 2020;
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Services Australia
PO Box 7820 Canberra BC ACT 2610
• the document falling within the scope of your request;
• relevant case law;
• the FOI Act;
• the
Freedom of Information (Charges) Regulations 1982 (the
Regulations); and
• the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines).
Relevant legislation
Subsection 29(4) of the FOI Act provides that, where an applicant has notified an agency that they
contend that a charge should be reduced or not imposed in relation to a request under the FOI Act,
then the agency may decide that the charge is to be reduced or not imposed.
Subsection 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.
Subsection 29(8) of the FOI Act provides that, if an applicant makes a contention about a charge as
mention in subsection 29(4) and the agency makes a decision to reject the contention in whole or
part, then the agency must give the applicant written notice of the decision and the reasons for the
decision.
Reconsideration of the preliminary charge
In your reconsideration request, you disputed the amount that has been calculated in the
preliminary charge. Accordingly, I have reconsidered the calculations set out in the preliminary
charge and set out my conclusions below.
Search and Retrieval time
In response to your request, Services Australia conducted searches of its records for any relevant
documents. These searches included consultation with the relevant business area within Services
Australia to:
• identify the requested document;
• confirm that the requested document had not been superseded by any subsequent report;
• retrieve the document; and
• search for any PowerPoint documents used by the service provider in the selection process.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
The business area has advised that the actual time taken to search for and retrieve the relevant
document was substantially in excess of one hour. Although the business area has advised that the
actual time taken for search and retrieval was in excess of the estimate provided in the preliminary
assessment of charges, I have decided not to revise the search and retrieval component of the
reconsidered charge.
Decision-making time
When calculating the decision-making component of this reconsidered charge, I have estimated the
time required to:
• examine relevant pages;
• undertake a consultation with an interested third party;
• consider the results of the consultation with the interested third party;
• where required, make required redactions to the pages for release; and
• prepare a statement of reasons for decision.
The preliminary charge included a total 9.2 hours for decision-making time. This calculation included
5 hours to prepare a statement of reasons for the decision. For the purposes of your reconsideration
request, I have formed the view that only 3 hours is required for this task.
Otherwise, I am satisfied that the preliminary charge accurately reflects the lowest reasonable cost
for processing your request. In particular, I note that the preliminary charge estimated:
• two minutes per page for the examination of the document for decision-making purposes;
and
• one minute per page to redact exempted material.
Given the need to carefully examine the requested documentation in light of the consultation with
the interested third party, I am satisfied that the estimates for examining the relevant pages and
marking required redactions are an accurate reflection of the time that would be required to
undertake those tasks.
Further, I consider that 2 hours to undertake a consultation and consider the response from the
affected third party is a reasonable estimate of the true time that would be taken to undertake these
tasks.
In summary, I am satisfied that the reconsidered charges set out in the table above accurately
reflects the lowest reasonable cost for processing your request.
Reconsideration of the Preliminary Charge – other considerations
Your reconsideration request also disputed the preliminary charges on financial hardship and public
interest grounds. My consideration of these matters is set out below.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
Financial Hardship
Paragraph 29(5)(a) of the FOI Act provides that an agency must take into account whether payment
of a charge, or part of it, would cause financial hardship to an applicant. In response to a request
from Services Australia, you provided a copy of a low income health card as evidence of your
financial hardship.
The Guidelines at 4.77 relevantly provide:
‘An applicant relying on this ground could ordinarily be expected to provide some evidence
of financial hardship. For example, the applicant may rely upon (and provide evidence of)
receipt of a pension or income support payment; or provide evidence of income, debts or
assets…’
The FOI Act does not require applicants to provide their name when making a freedom of
information request. However, as the name on the low income health card you provided does not
match the name you provided when submitting your request, I cannot be satisfied that the FOI
applicant is the same individual as identified on the Centrelink low income health card.
Therefore, on the evidence before me, I am not satisfied that payment of the reconsidered charge
would cause you financial hardship, and I have decided not to reduce the reconsidered charge on
this basis.
The public interest
Paragraph 29(5)(b) of the FOI Act provides that an agency must also take into account whether the
provision of access to the requested document 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 documents and the context of their release.
In
MacTiernan and Secretary, Department of Infrastructure and Regional Development [2015] AATA
584, the Administrative Appeals Tribunal found that where release is in the general public interest,
or in the interest of at least a substantial section of the public, charges ought to be waived.
Conversely, this decision also supports the view that where there is little public interest in the
release of information that is within scope, then it is appropriate for the charges to be affirmed.
Paragraphs 4.81 and 4.82 of the Guidelines also provide:
An applicant relying on s 29(5)(b) 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. Matters to be considered include whether the information in the
documents is already publicly available, the nature and currency of the topic of public
interest to which the documents relate, and the way in which a public benefit may flow from
the release of the documents
(Internal references deleted)…
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Services Australia
PO Box 7820 Canberra BC ACT 2610
[T]he 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.
Paragraph 4.79 of the Guidelines provides:
This test is different to and to be distinguished from public interest considerations that may
arise under other provisions of the FOI Act.
I further note you made the following submission in your reconsideration request:
The second ground is that usually applicable fees should be waived in this instance, as this
FOI request is within the public interest. $2.6M is a large amount of money for a consulting
contract; so there is a public interest in having full transparency regarding this transaction.
McKinsey's activities as a consultant has also been frequently scrutinised in the news media,
adding weight to the public interest in transparency regarding this transaction. Finally,
transparency regarding the management practices of Services Australia is particularly in the
public interest of late; given the public's reliance on Services Australia's systems during this
pandemic.
Consideration of the public interest
The primary question is whether a benefit wil flow to the public generally or a substantial section of
the public from disclosure of the information in the documents in scope of your request. This
requires me to consider the nature of the requested document and the context surrounding its
potential release.
Relevant to this issue, paragraph 4.84 of the Guidelines provides that an agency may consider, ‘…
whether the range or volume of documents requested by an applicant could be considered
reasonably necessary for the purpose of contributing to public discussion or analysis of an issue’. I
note that the work of the consultant in question and the contract management practices of Services
Australia are already scrutinised in a number of forums, including parliamentary committees and the
media.
In addition, Services Australia is obliged to comply with the Commonwealth Procurement Rules (the
CPRs). The CPRs govern how Commonwealth authorities procure goods and services to ensure
the Government and taxpayers obtain value for money. Among other obligations, the CPRs require
Commonwealth authorities (including Services Australia) to report contracts on AusTender.
AusTender publication requirements set out in the CPRs are in place to ensure the public has
sufficient oversight of government spending. Services Australia has complied with its publication
requirements under the CPRs by reporting the relevant contract on AusTender.
In light of the above, I consider that the release of the requested document would not further inform
the public debate on this subject. Nor would it provide any scrutiny about the services that have
been provided in accordance with the terms of the contract. Having considered these factors and
your reconsideration request, I am not satisfied that you have provided persuasive reasons in favour
of waiving the preliminary charge in the public interest.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
Furthermore, I do not consider that release of the requested document would be in the general
public interest, or the interest of a substantial portion of the public. Accordingly, I am not satisfied
that there are sufficient public interest factors in favour of reducing or waiving the charge associated
with the processing of the requested document.
Conclusion
I am satisfied that the reconsidered charge set out above accurately reflects the lowest reasonable
cost for the time that it wil take Services Australia to process your request.
I am not satisfied that the charge should be reduced or waived on the grounds of financial hardship
or that the release of the document would be in the general public interest or in the interest of a
substantial section of the public.
I have decided that the reconsidered charge of
$61.00 is appropriate and reasonable to provide you
with a decision on access to documents.
Required action
If you would like Services Australia to continue processing your FOI request, please notify Services
Australia in writing within 30 days of receiving this letter that you:
a) agree to pay the charge (deposit or in full); or
b) seek review of the charge, being:
i. internal review; or
ii. external review.
Alternatively, you may wish to withdraw your request for access to documents. If you wish to
withdraw your request, please do so in writing t
o xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
If we do not hear from you within 30 days we wil take your request to be withdrawn.
Further information on options a) and b) is provided below.
Please note that the payment of a charge does not guarantee access to documents, in full or in part.
Option a) - pay the charge
As the charge exceeds $25.00 but does not exceed $100.00, you are required to pay the charge in
full, or a deposit of $20.00 within 30 days of receiving this notice. You may select from one of the
following payment methods:
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Services Australia
PO Box 7820 Canberra BC ACT 2610
1. Online payment via Government EasyPay – please go to
https:/ www.ippayments.com.au/
access/index.aspx?a=85987733&dl=legalservices_hpp_purchase and enter the relevant
details. You wil need your FOI LEX reference number,
LEX 54082; or
2. Cheque made out to the Collector of Public Monies and posted to Freedom of Information,
Services Australia, 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, Services Australia, PO BOX 7820, Canberra BC, ACT 2610.
If you elect to pay the charge, please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx to advise
us of your payment. Please quote reference number
LEX 54082 in this correspondence.
Option b) – seek review
If you disagree with the decision to impose a charge, or the amount of the charge, you can ask for a
review. There are two ways you can do this. You can ask for an internal review from within Services
Australia, or an external review by the Office of the Australian Information Commissioner. You do
not have to pay for reviews of decisions. See
Attachment A for more information about for to
arrange a review.
Time limits for processing your request
Section 31 of the FOI Act provides that where a notice is sent to an applicant regarding the payment
of a charge in respect of a request, the time limit for processing the request is suspended from the
date the notice is received until either:
a) the day following payment of the charge (in full or the required deposit); or:
b) if applicable, the day following the notification to the applicant of a decision not to
impose the charge.
Address for correspondence
Please send all correspondence regarding your FOI request to me at the following address:
Freedom of Information
Services Australia
PO Box 7820
CANBERRA ACT 2610
Or by email to
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
Further assistance
If you have any FOI questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Don
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Services Australia
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Services Australia
PO Box 7820 Canberra BC ACT 2610
Attachment A
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a ful explanation of a Freedom of Information decision
Before you ask for a formal review of a freedom of information decision, you can contact us to
discuss your request. We wil explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you stil 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 Services Australia; 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 Services Australia delegate who
made the original decision wil carry out the review. The Internal Review Officer wil 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 the decision; and
• sent to the address for correspondence set out above (or be delivered to any Centrelink service
centre).
Note 2: You do not need to fil 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 Services Australia within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original FOI
decision.
You wil have 60 days to apply in writing for a review by the Australian Information Commissioner.
You can
lodge your application:
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Services Australia
PO Box 7820 Canberra BC ACT 2610
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 Services Australia’s
decision on your FOI request
• Include your contact details
• Set out your reasons for objecting to Services Australia's decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the 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 Information Commissioner must be made in writing. The Information
Commissioner's contact details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au
Commonwealth Ombudsman
You may also complain to the 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
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.
PAGE 11 OF 11
Services Australia
Document Outline
