LEX 56248 Charges Final reconsideration of charges.pdf

PO Box 7820 Canberra BC ACT 2610

21 August 2020

Our reference:  LEX 56248

Mr John Smith

Only by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Smith

Freedom of Information Request – Reconsideration of Charges

I refer to your email dated 22 July 2020, contending that a charge should not be imposed in relation
to the processing of your request dated 6 July 2020, made under the Freedom of Information Act
1982 (FOI Act). You requested access to:

'- A document that contains the total number of non-APS staff, filling equivalent roles to
actual APS staff in your department.

- A document that contains a list of all position titles within your department, that are
currently filled by non-APS staff.

Typically these non-APS employees are ostensibly employed through labour hire agencies,
and fulfil functionally equivalent roles to their colleagues.

If no such document exists please advise.’

Background

Services Australia has located one document relevant to your request.

On 17 July 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 $75.00 (preliminary charge).

The preliminary charge was calculated as follows:

Search and retrieval time: 5 hours, at $15.00 per hour:
$75.00

Decision-making time (*after deduction of 5 hours): 0 hours, at
$0.00
$20.00 per hour

TOTAL
$75.00

*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.

Reconsideration of the preliminary charge

On 22 July 2020, you responded to the preliminary charge notification, contending that the
preliminary charge should be reconsidered (reconsideration request). In that correspondence you
stated:
PAGE 1 OF 9

PO Box 7820 Canberra BC ACT 2610

‘I seek an internal review, in the hope that this charge will not be imposed.

The use of labour hire services in the public service is a matter that has been discussed by
many outlets, in both the mainstream and independent media.

Further clarity on the use of labour hire employees throughout government departments,
(both Commonwealth and State) is of interest to a substantial section of the public.

Information about the number of labour hire employees working APS-equivalent roles, is not
currently available within the DHS annual reports. That is why this FOI request is necessary.

To substantiate this point, let me point out a number of recent articles written about public
sector use of labour hire:

Sydney Morning Herald:
https://www.smh.com.au/politics/federal/union-calls-for-end-to-public-service-labour-hire-
20180802-p4zv55.html

ABC News:
https://www.abc.net.au/news/2020-07-03/australian-public-service-shrank-before-
coronavirus-pandemic-hit/12417662

https://www.abc.net.au/news/2019-11-06/nsw-government-splashing-cash-contractors-and-
short-term-workers/11673498

Michael West Media:
https://www.michaelwest.com.au/boomers-vs-millennials-the-gig-economy-breaks-enters-
the-australian-public-service/

It is also a topic that has been of interest to the CPSU, a union that represents a substantial
section of the public (namely, public servant union members)

https://www.cpsu.org.au/campaigns/scrap-the-cap

In light of the above, please waive the fee associated with this request; on the ground that
this is a public interest inquiry.’

I have reconsidered the preliminary charge and decided to apply a 20% reduction. The reasons for
my decision are set out below.

What I took into account

In reaching my decision I took into account:

  the preliminary charge;
  your reconsideration request;
  the document falling within the scope of your request;
  relevant case law;
  the FOI Act;
PAGE 2 OF 9

PO Box 7820 Canberra BC ACT 2610

  the Freedom of Information (Charges) Regulations 1982 (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,
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 in part, the agency must give the applicant written notice of the decision and the reasons for the
decision.

Reconsideration of the 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 consultations with the relevant business area within Services
Australia to:

  identify the relevant document;
  compile the relevant document; and
  retrieve the relevant document.

The preliminary charge estimated 5 hours of search and retrieval time. The business area that
undertook the searches confirmed that this was an accurate reflection 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 estimated the time
required to:

PAGE 3 OF 9

PO Box 7820 Canberra BC ACT 2610

  examine the document; and
  prepare a statement of reasons for the decision.

I do not consider that the decision-making process will exceed 5 hours. Therefore, there is no
charge associated with this component of processing your request.

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.

Paragraph 4.103 of the Guidelines provides:

‘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…’

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 4.107 and 4.108 of the Guidelines relevantly 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  (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.’

I also refer to paragraph 4.105 of the Guidelines which provides:

PAGE 4 OF 9

PO Box 7820 Canberra BC ACT 2610

This test is different to, and can be distinguished from public interest considerations that may
arise under other provisions of the FOI Act.

Consideration of the public interest

I have considered the news articles referred to in your reconsideration request.

I  have  also  considered  the  general  public  interest  in  the  use  of  labour  hire,  consultants  and
contractors  in  the  public  sector.  I  have  found  that  interest  is  generally  focussed  on  public  service
expenditure in this area, rather than specific numbers of contractors employed in the public sector.
For example, I direct you to the following articles:

https://www.afr.com/policy/economy/public-sector-work-pays-for-deloitte-ey-kpmg-and-pwc-
20200615-p552m7
https://www.canberratimes.com.au/story/6547829/consultants-clean-up-as-aps-stagnates/
https://www.canberratimes.com.au/story/6416045/timely-cost-effective-services-australia-
defends-increasing-use-of-contractors/

Services  Australia  reports  on  its  expenditure  on  contractors  and  consultants  in  its  annual  report.
This report is publicly available and can be accessed on Services Australia’s website. Specifically, I
draw  your  attention  to  pages  248,  291  and  292  of  the  most  recent  2018-19  report  which  can  be
accessed via the following link:

https://www.servicesaustralia.gov.au/organisations/about-us/annual-reports/annual-report-
2018-19

I also note that the work of consultants and the contract management practices of Services
Australia are already scrutinised in a number of public forums, including parliamentary committees
and the media.

In light of the above, most interest is focussed on public expenditure. This information is already
publicly available and I do not consider that releasing the document would otherwise assist the
public debate on this topic.

Nonetheless, I accept that in the current economic climate where there is an increased rate of
unemployment in the Australian economy, there is a general public interest in the number of
individuals being employed through the public service.

As such, I have decided that a 20% reduction in the charge is appropriate. This would reduce the
preliminary charge to $60.00 (revised charge).

Conclusion

I  consider  that  the  search  and  retrieval  time  as  well  as  the  decision  making  time  set  out  in  the
preliminary  charge  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.

However,  I  am  satisfied  that  the  release  of  the  document  would  be  in  the  general  public  interest,
and that a 20% reduction to the preliminary charge on this ground is appropriate.
PAGE 5 OF 9

PO Box 7820 Canberra BC ACT 2610

I  have  therefore  decided  that  the  reduced  charge  is  reasonable  to  provide  you  with  a  decision  on
access to the document.

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 revised 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  revised  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 56248; 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 56248 in this correspondence.

PAGE 6 OF 9

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 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

Samantha
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and FOI Branch Legal Services Division
Services Australia
PAGE 7 OF 9

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:
PAGE 8 OF 9

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 9 OF 9