PO Box 7820 Canberra BC ACT 2610
17 July 2020
Our reference: LEX 55232
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 17 June 2020, contending that a charge should not be imposed in relation
to the processing of your request dated 2 June 2020, made under the
Freedom of Information Act
1982 (
FOI Act). Your request was framed in the following terms:
‘I wish to obtain a copy of the contract between Services Australia and McKinsey, in
association with the tender CN ID: CN3665818
I also wish to obtain documents (if they exist) explaining the purpose of this tender, and the
criteria used to award this contract.
Given the sizeable amount of money assicated with this contract (a contract value exceeding
an absolutely enormous $17,000,000.00 AUD); I ask that the public interest in transparency
of this tender be recognised, and that as a consequence the ordinarily applicable FOI fee be
waived in this instance.
Please limit your search to a reasonable search of the department's electronic records
system.’
Background
Services Australia conducted searches of its records and identified two documents (the
requested
documents) within the scope of your request.
On 16 June 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 $46.67 (
preliminary charge).
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Services Australia
PO Box 7820 Canberra BC ACT 2610
The preliminary charge was calculated as follows:
Search and retrieval time: 0.67 hours, at $15.00 per hour:
$10.00
Decision-making time (after deduction of 5 hours*): 1.83 hours, at
$36.67
$20.00 per hour
TOTAL
$46.67
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
Reconsideration of the preliminary charge
On 17 June 2020, you responded to the preliminary charge notification, contending that the
preliminary charge should be reconsidered (the
reconsideration request). Your reconsideration
request was made in the following terms:
Given the large amount of public money associated with this tender, 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.
I have now reconsidered the preliminary charge. I have decided to affirm the preliminary charge of
$46.67 as set out in the table above.
I am satisfied that the preliminary charge reflects the lowest reasonable cost to provide you with a
decision on access to the requested documents. 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 June 2020;
the preliminary charge dated 16 June 2020;
your reconsideration request dated 17 June 2020;
the requested documents;
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).
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Services Australia
PO Box 7820 Canberra BC ACT 2610
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
mentioned 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 order to complete a comprehensive reconsideration of the preliminary charges, 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 relevant file;
search the file to identify all documents that fell within the scope of your request;
retrieve the requested documents; and
prepare a schedule detailing the requested documents.
The preliminary charge estimated the time taken to search for and retrieve the requested
documents was 0.67 hours. The business area that undertook those duties has advised me that the
estimated time in the preliminary charges is an accurate estimate of the time taken to complete the
task. Accordingly, I have decided not to revise the search and retrieval component of the preliminary
charge.
Decision-making time
When calculating the decision-making component of the preliminary charge, I have estimated the
time required to:
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Services Australia
PO Box 7820 Canberra BC ACT 2610
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 6.83 hours for decision-making time. This calculation
included 3 hours to prepare a statement of reasons for the decision. For the purposes of your
reconsideration request, I have formed the view that 3 hours is an accurate estimate required for the
completion of this task.
I am also satisfied that the other decision-making components of the preliminary charge accurately
reflects the lowest reasonable cost for processing your request. In particular, I note that the
preliminary charge estimated five minutes per page for the examination of the document for
decision-making purposes and to redact exempted material.
Given the need to carefully examine the requested documents 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 preliminary charge 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.
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 4.77 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…’
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Services Australia
PO Box 7820 Canberra BC ACT 2610
You have not provided any evidence to show that payment of the preliminary charge would cause
you financial hardship, and I have decided not to reduce the preliminary 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 documents 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)…
[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:
Given the large amount of public money associated with this tender, 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.
Consideration of the public interest
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 documents in scope of your request. This
requires me to consider the nature of the requested documents and the context surrounding its
potential release.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
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 contract management practices and service delivery 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 documents would not further inform
the public debate on the contract management practices and service delivery practices of Services
Australia. 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.
Furthermore, 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 the preliminary charge set out above 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 preliminary 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 preliminary charge of
$46.67 is appropriate and reasonable to provide you
with a decision on access to documents.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
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 to xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
If we do not hear from you within 30 days we will 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 preliminary 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:
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 will need your FOI LEX reference number,
LEX 55232; 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 55232 in this correspondence.
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Services Australia
PO Box 7820 Canberra BC ACT 2610
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.
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 full 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 will 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 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 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 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 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 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 Services Australia 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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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.
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Services Australia
