If not delivered return to PO Box 7820 Canberra BC ACT 2610
3 August 2020
Our reference: LEX 56235
Previous reference: LEX 54082
Mr John Smith
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx Dear Mr Smith
Freedom of Information Request – Internal Review Charges
I refer to your request dated and received by Services Australia on 3 July 2020, for an internal
review of a decision issued to you under subsection 29(6) of the
Freedom of Information Act 1982
(
FOI Act) on 1 July 2020 (
Reconsideration Decision).
Background On 2 April 2020, you made a request under the FOI Act in the following terms:
‘Please provide all documents relating to the Open Tender of and contract for Management
support services by Services Australia awarded to Partners in Performance International PL
("PIP") including documents relating to the:
1. calling of the tender
2. the contract awarded to PIP (please provide a copy)
3. any technical specifications or requirements issued by Services Australia in relation to the
tender or contract.
The following reference on AusTender may be helpful:
CN ID: CN3665779
SON ID: SON3538332
Agency Reference ID: D365030094P’
On 3 June 2020, 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 $125.60 (
Preliminary Charge).
On 3 June 2020, you responded to the Preliminary Charge notification contending that Services
Australia should waive the preliminary charge. Your request to reconsider the Preliminary Charge
was made in the following terms:
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‘Given the large amount of public money associated with this tender (>$3M), I ask that a
public interest in the transparency of this matter be recognised; and the ordinarily applicable
FOI fee be consequently waived in its entirety, on the grounds of a public interest in the
proper use of public expenditure.
Alternatively, I request that the fee be waived on the ground of financial hardship.’
On 16 June 2020, Services Australia responded to your reconsideration request by asking you to
provide evidence of your financial hardship. On 17 June 2020, Services Australia received an email
attaching a copy of a low income health care card.
On 1 July 2020, Services Australia notified you of the reconsideration of charges decision
(
Reconsidered Charge). The Reconsidered Charge reduced the estimated time taken to process
your request by 2 hours. This had the effect of reducing the charge to $85.60.
However, after considering all of the available evidence, the Reconsidered Charge did not reduce or
waive the charge on the basis of financial hardship or public interest grounds.
On 3 July 2020, you sought an internal review of the Reconsidered Charge.
Internal Review Section 53A(e) of the FOI Act allows for internal review of a decision made under section 29 of the
FOI Act.
I am authorised under section 23 of the FOI Act to undertake internal review decisions. In
accordance with section 54C, I am a person other than the person who made the Reconsidered
Charge decision.
What I took into account In reaching my decision on internal review of the Reconsidered Charges, I took into account:
Services Australia correspondence dated 3 June 2020, notifying you of the preliminary
charge;
your reconsideration request dated 3 June 2020;
other correspondence between 16 June 2020 and 17 June 2020;
the documents falling within the scope of your request (the
Requested Documents);
consultations with Services Australia officers about:
o the nature of the requested information; and
o Services Australia’s operation environment and functions;
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relevant case law;
the FOI Act;
the
Freedom of Information (Charges) Regulations 2019 (
Regulations); and
the Guidelines issued by the Office of 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.
Review of the Reconsidered Charge
Although you did not make any submissions regarding the calculation of the Reconsidered Charge,
for completeness, I have re-examined the calculations that were used.
In the course of assessing the calculations used in the Reconsidered Charge, I reviewed the
Requested Documents and considered the time it would take to process the documents in full. I also
considered the time taken to search for a retrieve the Requested Documents.
The Reconsidered Charge advised that the time taken to search for and retrieve the Requested
Documents was 1.12 hours. This was based on advice provided by the business area that
undertook those duties. Noting that the business area has already undertaken the search and
retrieval process, I am satisfied that 1.12 hours is an accurate reflection of the actual time taken,
and therefore, I have decided not to revise the search and retrieval component of the Reconsidered
Charge.
The Reconsidered Charge estimated that it would take approximately 8.44 hours to process the
Requested Documents. Having reviewed the Requested Documents, I am satisfied that this is an
accurate reflection of the actual time that would be required to process the Requested Documents.
Having considered the tasks undertaken by Services Australia which relate to search and retrieval
and processing of the Requested Documents, the calculation of the Reconsidered Charge, and the
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reasoning behind it, I am satisfied that the Reconsidered Charge calculated fairly reflects the work
involved in processing your request and reflects the lowest reasonable cost for the time it will take
Services Australia to process your request.
Therefore, I have decided to impose a charge of $85.60 on internal review.
Other considerations
Your internal review request disputed the Reconsidered Charge on financial hardship and public
interest grounds. My consideration of these matters are set out below.
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.
The Guidelines at 4.101 and 4.103 relevantly provide:
‘Whether payment of a charge would cause financial hardship to an applicant is primarily
concerned with the applicant’s financial circumstances and the amount of the estimated
charge…
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.
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…’
On 17 June 2020, Services Australia received an email which attached a Centrelink low income
health card. Whilst the name on the card did not match the name of the FOI applicant, you advised
that you were using a pseudonym to lodge your FOI requests through the Right to Know website.
As advised previously, the FOI Act does not require applicants to provide their name when making a
freedom of information request. However, on the information before me, I cannot be satisfied that
the FOI applicant is the same individual as identified on the Centrelink low income health card. This
is because you have not provided any other identifying information, only a copy of the low income
health care card itself.
Further, based on the Guidelines as set out above, to establish financial hardship you would need to
provide information to substantiate that paying the charge of $85.60 would leave you unable to
provide food, accommodation, clothing, medical treatment, education or other necessities for
yourself, your family or other people for whom you are responsible. I am not satisfied that you have
provided any information to substantiate that payment of the charge would cause you financial
hardship.
Therefore, on the evidence before me, I am not satisfied that payment of the charge would cause
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you financial hardship, and I have decided not to reduce the charge on this basis.
Public interest
Relevant legislation, case law and Guidelines
Paragraph 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 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 charges to be applied.
When discussing the issuing of charges and the consideration of the public interest, paragraph
4.105 of the Guidelines provides:
The FOI Act requires an agency or minister to consider ‘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’ (s 29(5)(b)). This test is different to and to be distinguished from public
interest considerations that may arise under other provisions of the FOI Act.
Paragraphs 4.107 and 4.108 of the Guidelines 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 (s 29(1)(f)(ii)). 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.
[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.
Your submissions
In your request for internal review you made the following submissions:
I note that in your reasons you have disputed my claim that an attempt at oversight of a large
amount of spending by a government agency, isn't a sufficient public interest reason.
It may be the case that the procurement was made under government rules. That is besides
the point. Whether the taxpayer got value for money through the procurement, can only be
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discerned by the public if the details of transactions are known. It is also besides the point
that these transactions are already overseen by parliament and the government. The FOI act
is for members of the public to make requests that are of interest to the public, regardless of
whether those transactions are already of interest to the government.
While this specific transaction might appear to be unimportant in isolation, it is part of a
pattern of increased government outsourcing within the APS, and especially Services
Australia in recent years. The increased use of private contractors within public agencies has
been the subject of much public reporting.
For instance; these practices have been mentioned in the Australian Financial Review:
https://www.afr.com/politics/federal/gov... [sic]
The ABC:
https://www.abc.net.au/news/2018-12-09/l... [sic]
Among other publications.
To re-iterate my point; this FOI request is a part of a series of FOI requests that intend to
investigate the use of outsourcing within government departments. This is what makes the
request in the public interest.
Consideration of public interest The primary question is whether a benefit will flow to the public generally, or to a substantial section
of the public, from the disclosure of the information in the Requested Documents. This requires me
to consider the nature of the documents and the context surrounding its potential release.
Public interest factors that weigh in favour of reducing or waiving a charge could include:
where release would promote the objects of the FOI Act, including increasing scrutiny,
discussion, comment and review of Government activities;
where the document is to be used for research that is to be published widely or that
complements research being undertaken in an agency or elsewhere in the community;
where release would facilitate and promoting public access to information, promptly and at
the lowest reasonable cost;
the document is to be used by a community or non-profit organisation in preparing a
submission to a parliamentary or government inquiry, for example, on a law reform, social
justice, civil liberty, financial regulation, or environmental or heritage protection issue; or
where release would inform the public on matters of public importance or interest, and
assisting participation in debate or discussion.
I have considered your submission that the request is part of a series by you that looks to
investigate the use of ‘outsourcing’ within government departments.
I accept that there is a public interest in the structure of the Australian Public Service, including the
use of labour hire staff. However, this particular issue has been scrutinised in a number of forums,
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including through the Senate Inquiries (which have explored issues during public hearings that
included the use of, and spending on, contractors, consultants, and labour hire workers), through
reporting obligations imposed by the Commonwealth Procurement Rules and in media articles. I
have reviewed the Requested Documents and do not consider that the release of this information
will contribute any additional benefit to the public regarding the use of ‘outsourcing’, including on the
contract management or service delivery practices of Services Australia.
Based on all of the information before me, I do not consider that release of the Requested
Documents 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 Documents.
Conclusion
I am satisfied that a charge of $85.60 accurately reflects the lowest reasonable cost for the time that
it will 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.
Therefore, I have decided to impose a charge of
$85.60.
Required Action
If you would like Services Australia to continue processing your request, you must notify Services
Australia in writing within 60 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.
If we do not hear from you within 60 days we will take your request to be withdrawn.
Option a) - pay the charge
As the charge exceeds $25.00, but does not exceed $100.00, you are required to pay in full, or a
deposit of $20.00 within 60 days of receiving this notice. You may, of course, elect to pay the
charge in full at this point.
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 56235; or
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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 56235 in this correspondence.
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 team
Services Australia
PO Box 7820
CANBERRA ACT 2610
Or by email to
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx. You can ask for a review of our decision
If you disagree with any part of the decision you can ask for a review. You can ask for 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 how to arrange a review.
Further assistance
If you have any questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx. Yours sincerely
Alana Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and FOI Branch Legal Services Division
Services Australia
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Attachment A
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The FOI Act gives you the right to apply for a review of this decision. Under sections 54L of the FOI
Act, you can apply for a review of this decision by the Information Commissioner.
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can lodge your
application in one of the following ways:
Online:
www.oaic.gov.au Post: GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
An application form is available on the website at www.oaic.gov.au. Your application should include
a copy of the notice of the decision that you are objecting to, and your contact details. You should
also set out why you are objecting to the decision.
Complaints to the Commonwealth Ombudsman
You may 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.
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