Ref: LEX-4161
Mr John Smith
Via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Your Freedom of Information request – Charges decision
I refer to your revised request, received by the Department of Agriculture, Water and the
Environment (
department) on 28 May 2020 for access under the
Freedom of Information Act
1982 (
FOI Act) to the following documents:
‘a copy of all emails in which this transaction [the Eastern Australia Agriculture’s 2017
sale of water rights to the department] has been discussed by SES-level staff within the
department (including deleted or archived emails). Please exclude emails that were not
sent or recived [sic] by an SES level public servant from the FOI request. To make this
part of the FOI request feasible, please restrict this request to only encompass emails
that contain either 'Eastern Australian Irrigation' or the acronym 'EAI' as an exact term
within the email. (This should make it possible to do a simple electronic search for
emails within the department's database).’
My decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to affirm the charge of $100.83. My findings of fact and reasons for this decision
are discussed below.
Preliminary assessment of charge
On 11 June 2020, the department wrote to you to advise you that you were liable for a charge of
$100.83 for processing your request.
The preliminary assessment of that charge was calculated as follows:
Search and retrieval time: 1/2 hour, at $15.00 per hour
$7.50
Consultation with 3 third parties, 2 hours per party, at $20 per hour
$120.00
Decision-making time: 3.67 hours, at $20.00 per hour
$73.33
Reduction of 5 hours*
-$100.00
TOTAL
$ 100.83
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
T +61 2 6272 3933
18 Marcus Clarke Street
GPO Box 858
agriculture.gov.au
F +61 2 6272 5161
Canberra City ACT 2601
Canberra ACT 2601
ABN 24 113 085 695
Your contentions
On 11 June 2020, you requested a waiver of the charge for processing your request under the
FOI Act, on the grounds that the release of the documents are in the public interest. Specifically,
your correspondence provided:
‘Given the OBVIOUS public interest in documents that are the subject of this FOI request,
I ask that your department waive the FOI fee in its entirety in relation to the documents
requested.
In case this public interest needs to be spelled out; this transaction has been mentioned
in the news:
Here -> https://www.afr.com/rear-window/eastern-australia-agriculture-s-80-million-
accounting-triumph-20190429-p51ics
Here - > https://www.theguardian.com/australia-news/2019/apr/23/barnaby-joyce-
requested-updates-on-80m-sale-of-water-by-eastern-australia-agriculture
Here -> https://www.abc.net.au/news/2019-04-23/water-buybacks-everything-we-
know/11037798
And here -> https://www.michaelwest.com.au/barnaby-joyce-angus-taylor-australia-
and-the-caribbean/
This request could not possibly be more in the public interest. Please waive the
associated fee.’
Financial hardship
Under section 29(5)(a) of the FOI Act, I am required to consider whether payment of the charge
would cause financial hardship to you.
Paragraph 4.75 of the Guidelines relevantly provides:
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 and your family, or other people for whom you are responsible.
The Guidelines further provide that an applicant relying on the grounds of financial hardship
would ordinarily be expected to provide some evidence of financial hardship, such as receipt of
an income support payment or evidence of income, debts or assets. In this regard, I note that you
have not contested the charges notification due to financial hardship and as such have not
provided evidence of your financial status.
Public interest
Under section 29(5)(b) of the FOI Act, I am required to consider whether giving access to the
documents would be in the general public interest or the interest of a substantial section of the
public.
Paragraph 4.80 of the Guidelines relevantly provides:
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
2
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 the public interest to which the documents relate, and the way in which a
public benefit may flow from the release of the documents.
The Guidelines further provide that there is no presumption that the public interest test is
satisfied by reason only that the applicant is a Member of Parliament, a journalist or a
community or non-profit organisation. The Guidelines further provide that it is necessary to go
beyond the status of the applicant and to look at other circumstances.
While I have noted your submissions in relation to the public interest, I am not satisfied that it
would be in the general public interest or the interest of a substantial section of the public to
give access to the documents without imposing charges. I note that the FOI Act provides for the
imposition of fees and associated fee reductions for the first five hours of departmental effort. In
addition, whilst there may be public commentary and public interest relating to the topic of the
Eastern Australia Agriculture’s 2017 sale of water rights to the department, you have not
established that this is the case in relation to the specific documents you are seeking through
this amended request.
A significant volume of documents on the transaction has already been publicly released in
response to an Order for the Production of Documents from the Australian Senate and other FOI
requests. If the release of the documents you are now seeking was in the general public interest,
then it is reasonable to assume they would have been within the scope of the Senate’s request.
I have reviewed your requested documents and they do not contain information, disclosure of
which would be in the general public interest. Furthermore, your reasons for contesting the
charges which is a series of online news articles, refer to the topic of Eastern Australia
Agriculture’s 2017 sale of water rights, however as noted above, your submission does not
include the way in which a general public benefit may flow from the release of your specifically
requested documents. As such, I have decided to affirm the charge.
Payment details
If you would like the department to continue processing your request, you must respond to the
department within 30 days
after receiving this notice. If you do not respond within 30 days,
your request will be taken to have been withdrawn and no further action will be taken by the
department.
As the charge exceeds $25, you are required to pay a deposit of $25.21. You may, of course, elect
to pay the charge in full at this point. Payment can be made:
credit card by completing the attached form and sending a scanned copy to
xxx@xxxxxxxxxxx.xxx.xx or posting it to the address below
cheque or money order made payable to ‘Department of Agriculture, Water and the
Environment’, and forwarded to the following address:
FOI Coordinator
Department of Agriculture, Water and the Environment
GPO Box 858
CANBERRA CITY ACT 2601
direct deposit to:
3
A/C Name:
DAWR Departmental Account
Branch:
London Circuit, Canberra
Bank:
Reserve Bank
BSB:
092 009
A/C No.
111 698
ABN No: 24 113 085 695.
If payment is made by direct deposit, please include the FOI reference number
(LEX-4161) in the subject field, and send an email with notification of payment to
xxx@xxxxxxxxxxx.xxx.xx as soon it has been made.
Time periods of 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 applicant was notified of the charge until:
the day after the charge (or deposit) is paid; or
if applicable, where a subsequent review decision has been provided, the day after:
o a charge or deposit has been paid; or
o the applicant is notified of a decision to not impose the charge.
You can ask for a review of my decision
You may apply to the Office of the Australian Information Commissioner (
OAIC) to review my
decision. An application for review by the Information Commissioner must be made in writing
within
60 days after the day you are notified of this decision. You can also make a complaint to
the Information Commissioner if you have concerns about how the department handled your
request.
You can find information about requesting a review, making a complaint, and other information
about FOI on the OAIC website www.oaic.gov.au or phone the OAIC on 1300 363 992.
You can also make a complaint to the Commonwealth Ombudsman if you have concerns about
how the Department handled a request for documents under the FOI Act, or took any other
action under the FOI Act. There is no fee for making a complaint to the Commonwealth
Ombudsman.
Information about making a complaint to the Commonwealth Ombudsman is available in its
website www.ombudsman.gov.au or phone the Ombudsman on 1300 362 072.
Further assistance
If you have any questions, please email xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely
John Robertson
Assistant Secretary
Water Division
July 2020
4
