Our reference: FOI 20/21-0843
GPO Box 700
Canberra ACT 2601
1800 800 110
12 October 2021
ndis.gov.au
Shirley
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Shirley
Freedom of Information request – Response to Contention of Charge
I refer to your correspondence of 12 September 2021, in which you contested that the charge
has been wrongly assessed or should be reduced pursuant to section 29(4) of the Freedom
of Information Act 1982 (FOI Act).
I am an authorised Decision Maker under section 23(1) of the FOI Act.
Scope of your request
You have requested access to documents about the National Disability Insurance Scheme.
The scope of your request is for access to the fol owing documents:
“…a copy of the "Risk Management Framework" cited in the NDIA Annual Report 2013-
2014
… a copy of the Charter and/or Terms of Reference for the "Audit and Risk Committee
(ARC) cited in the NDIA Annual Report 2013-2014
… a copy of the "Risk Management Strategy" cited in the NDIA Annual Report 2013-
2014
… details and copies of "Risk Management" consultancies cited in the NDIA Annual
Report 2013-2014
… a copy of the NDIA's "Risk Management Declaration" for end of financial year 2013-
2014, as required by Part 5 of the legislative instrument: National Disability Insurance
Scheme—Risk Management Rules 2013.
…copies of al Audit and Risk Committee (ARC) Minutes of Meeting for the financial year
2013-14, cited in the NDIA 2013-14 Annual Report [1]. This includes al attendees,
agenda, topics and resolutions/outcomes.”
I am an authorised decision maker under section 23(1) of the FOI Act.
Decision
I have decided under section 29(4) of the FOI Act to reduce the amount you are liable to pay
to $250.00.
The reasons for my decision are set out below.
1
Background
On 9 September 2021, I notified you of the preliminary estimate of charge for the processing
of your FOI request, calculated as fol ows:
Search and retrieval time: 12 hours, at $15.00 per hour:
$180.00
Decision-making time: 8 hours (not including the first 5 hours*), at
$160.00
$20.00 per hour:
TOTAL
$340.00
* Please note that the FOI Act provides that the first 5 hours of decision-making time are free of charge
and this is reflected in the calculation.
On 12 September 2021, you advised the Agency that you wish to contend that the charge
should be reduced or had been wrongly assessed.
Materials considered
In making my decision, I have considered:
your arguments contesting the preliminary assessment of charge in your email dated
12 September 2021
the scope of your request
the content of the documents identified as fal ing within scope of your request
advice from Agency officers with responsibility for matters relating to the documents sought
the relevant sections of the FOI Act, the Freedom of Information (Charges) Regulations
2019 (Charges Regulations) and the Guidelines issued by the Australian Information
Commissioner under section 83A of the FOI Act (FOI Guidelines)
Relevant legislation
Section 29(4) of the FOI Act provides that, where an applicant has notified an agency that the
applicant contends 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.
Section 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
whether the giving of access to the documents in question is in the general public interest
or in the interest of a substantial section of the public
Section 29(8) of the FOI Act provides that, if an applicant makes a contention about a charge
as mentioned in section 29(4) and the agency makes a decision to reject the contention in
whole or in part, then the agency must give the applicant written notice of the decision and the
reasons for the decision.
Reasons for decision
Financial hardship
In accordance with section 29(5)(a) of the FOI Act, I have considered whether payment of the
charge or part of it, would cause financial hardship to you. Your correspondence dated 12
September 2021 did not provided any evidence that the payment of the charge would cause
you financial hardship. Therefore, I have decided that the payment of the charge would not
cause you financial hardship and no discount on the charge would apply on this ground.
General public interest or in the interest of a substantial section of the public
In accordance with section 29(5)(b) of the FOI Act, I have also considered whether the giving
of access to the documents in question is in the general public interest or in the interest of a
substantial section of the public. I note you have not made submissions in support of this
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disclosure being in the public interest. Nonetheless, I have considered this element and given
the age of the documents and the subject matter (i.e., documents relating to managing
emerging risks in 2013-2014) decided that release of the documents you have requested is
not in the public interest or in the interest of a substantial section of the public.
Other factors
Your correspondence from 12 September 2021 raises a number of issues with the calculation
of the preliminary assessment of charges. Specifical y, you dispute the assessment of time
required to search and retrieve the documents in issue and the time required to make a
decision on your access to these documents.
I have given further consideration to your contention that the time required to search and
retrieve the documents was excessive. I am satisfied that the 12 hours quoted does represent
the time taken to search and retrieve the documents in issue.
Given their age searching for the documents you have requested took a considerable amount
of time. However, giving consideration to the FOI Guidelines I have decided to reduce the
search and retrieval time to 6 hours. This revised estimate includes time required to search
the Agency’s recordkeeping repository, tag relevant document and prepare schedules
detailing al relevant documents.
You have raised concerns that 13 hours of decision making time is unreasonable and
unjustified. I have considered your views on this matter and disagree for the fol owing reasons:
The 30 documents have approximately 200 pages which contain material that requires
careful assessment by the decision maker, therefore, increasing the ‘decision making’ time
required for this request
The decision maker wil also need time to schedule and prepare a decision on each
document, as wel as preparing the notice of decision
Final y, I can confirm that I sighted the documents in issue before issuing you with my
preliminary assessment of charge.
Having regard to the Agency’s resources required to process your request, as wel as the
matters outlined above, I am satisfied that the charges, taking into account the reduction to
time required for search and retrieval of the documents in issue, have been fairly assessed.
Amended charge estimate
In accordance with section 29(4) of the FOI Act, I have decided to reduce the charge you are
liable to pay for the processing of your request. The charge payable by you is now:
Search and retrieval time: 6 hours, at $15.00 per hour:
$90.00
Decision-making time: 8 hours (not including the first 5 hours*), at
$160.00
$20.00 per hour:
TOTAL
$250.00
* Please note that the FOI Act provides that the first 5 hours of decision-making time are free of charge
and this is reflected in the calculation.
Options to proceed with your request
In order for your request to continue to be processed, you are required to respond in writing
within 30 days of receipt of this notice in accordance with one of the fol owing options:
A.
pay the charge;
B.
request a review of the decision to impose the charge, or
C.
withdraw your FOI request.
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Further information on options A, B and C are set out below.
Option A – pay the charge
As the charge exceeds $100, you are required to pay a deposit of $62.50 which is 25% of the
total amount within 30 days of receiving this notice. Alternatively, you may elect to pay the
charge in ful at this point.
If you wish to pay the charge please notify me as soon as possible, so I can raise an invoice
to facilitate your payment by cheque or electronic funds transfer.
Option B – request a review of the decision to impose the charge
If you are dissatisfied with my decision in relation to the reduced charge, you may apply for
internal review or Information Commissioner review of the decision. We encourage you to
seek internal review as a first step as it may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the Agency for an internal review
of my decision. The internal review application must be made within 30 days of the date of this
letter. Details on how to request an internal review of my decision are located at
Attachment A.
Information Commissioner review
Under section 54L of the FOI Act, you may apply directly to the Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made
in writing within 60 days of the date of this letter. Details on how to make an application for
review by the Information Commissioner of my decision are located at Attachment A.
Option C – withdraw your request
If you wish to withdraw your request, you may do so in writing. No charges will be payable if
your request is withdrawn at this stage.
If you do not provide a written response in accordance with one of Options A, B or C above
within 30 days of receiving this notice, your request wil be taken to have been withdrawn
under subsection 29(2) of the FOI Act.
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:
the day fol owing payment of the charge (in ful or the required deposit); or
if applicable, the day fol owing the notification to the applicant of a decision not to
impose the charge.
Attachment B to this letter contains excerpts of the relevant provisions of the FOI Act.
If you have any questions about this matter, please do not hesitate to contact me at
xxx@xxxx.xxx.xx
Yours sincerely
Rafaela
A/g Assistant Director FOI
Parliamentary, Ministerial & FOI Branch
Government Division
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Attachment A
Your review rights
Internal Review
If you disagree with my decision in relation to the charge, you have the right to apply for an
internal review of this decision. The review wil be conducted by a different person to the
person who made the original decision.
If you wish to seek an internal review of the decision, you must apply for the review, in
writing, within 30 days of receipt of this letter. No particular form is required for an application
for internal review, but to assist the review process, you should clearly outline your grounds
for review (that is, the reasons why you disagree with the decision).
Applications for review should be sent by email to me at xxx@xxxx.xxx.xx or by post to:
Freedom of Information Section
Parliamentary, Ministerial & FOI Branch
Government Division
National Disability Insurance Agency
GPO Box 700
CANBERRA ACT 2601
Review by the Office of the Australian Information Commissioner
The FOI Act also gives you the right to apply to the Office of the Australian Information
Commissioner (OAIC) to seek a review of this decision.
If you wish to have the decision reviewed by the OAIC, you may apply for the review, in
writing, or by using the online merits review form available on the OAIC’s website at
www.oaic.gov.au, within 60 days of receipt of this letter.
Applications for review can be lodged with the OAIC in the fol owing ways:
Online:
www.oaic.gov.au
Post:
GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Phone:
1300 363 992 (local cal charge)
Complaints to the Office of the Australian Information Commissioner or the
Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the OAIC about actions
taken by the NDIA in relation to your request. The Ombudsman wil consult with the OAIC
before investigating a complaint about the handling of an FOI request.
Your complaint to the OAIC can be directed to the contact details identified above.
Your complaint to the Ombudsman can be directed to:
Phone:
1300 362 072 (local cal charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your complaint should be in writing and should set out the grounds on which it is considered
that the actions taken in relation to the request should be investigated.
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Attachment B
Relevant provisions of FOI Act and Regulations
FOI Act
Section 11C Publication of information in accessed documents
Scope
(1) This section applies to information if an agency or Minister gives a person
access to a document under section 11A containing the information, except in the case of
any of the fol owing:
(a) personal information about any person, if it would be unreasonable to
publish the information;
(b) information about the business, commercial, financial or professional affairs
of any person, if it would be unreasonable to publish the information;
(c) other information of a kind determined by the Information Commissioner
under subsection (2), if it would be unreasonable to publish the information;
(d) any information, if it is not reasonably practicable to publish the information
under this section because of the extent of any modifications to a document (or documents)
necessary to delete information mentioned in paragraphs (a) to (c).
(2) The Information Commissioner may, by legislative instrument, make a
determination for the purposes of paragraph (1)(c).
Publication
(3) The agency, or the Minister, must publish the information to members of the
public general y on a website by:
(a) making the information available for downloading from the website; or
(b) publishing on the website a link to another website, from which the
information can be downloaded; or
(c) publishing on the website other details of how the information may be
obtained.
(4) The agency may impose a charge on a person for accessing the information
only if:
(a) the person does not directly access the information by downloading it from
the website (or another website); and
(b) the charge is to reimburse the agency for a specific reproduction cost, or
other specific incidental costs, incurred in giving the person access to that particular
information.
(5) If there is a charge for accessing the information, the agency or Minister must
publish details of the charge in the same way as the information is published under this
section.
Time limit for publication
(6) The agency or Minister must comply with this section within 10 working days
after the day the person is given access to the document.
(7) In this section:
working day means a day that is not:
(a) a Saturday; or
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(b) a Sunday; or
(c) a public holiday in the place where the function of publishing the
information under this section is to be performed.
Section 29 Charges
(1) Where, under the regulations, an agency or Minister decides that an applicant is
liable to pay a charge in respect of a request for access to a document, or the provision of
access to a document, the agency or Minister must give to the applicant a written notice
stating:
(a) that the applicant is liable to pay a charge; and
(b) the agency’s or Minister’s preliminary assessment of the amount of the
charge, and the basis on which the assessment is made; and
(c) that the applicant may contend that the charge has been wrongly assessed,
or should be reduced or not imposed; and
(d) the matters that the agency or Minister must take into account under
subsection (5) in deciding whether or not to reduce, or not impose, the charge; and
(e) the amount of any deposit that the agency or Minister has determined,
under the regulations, that the applicant wil be required to pay if the charge is imposed; and
(f) that the applicant must, within the period of 30 days, or such further period
as the agency or Minister al ows, after the notice was given, notify the agency or Minister in
writing:
(i) of the applicant’s agreement to pay the charge; or
(i ) if the applicant contends that the charge has been wrongly assessed,
or should be reduced or not imposed, or both—that the applicant so contends, giving the
applicant’s reasons for so contending; or
(i i) that the applicant withdraws the request for access to the document
concerned; and
(g) that if the applicant fails to give the agency or Minister such a notice within
that period or further period, the request for access to the document wil be taken to have
been withdrawn.
(2) If the applicant fails to notify the agency or Minister in a manner mentioned in
paragraph (1)(f) within the period or further period mentioned in that paragraph, the applicant
is to be taken to have withdrawn the request for access to the document concerned.
(3) An agency or Minister must not impose a charge in respect of a request for
access to a document, or the provision of access to a document, until:
(a) the applicant has notified the agency or Minister in a manner mentioned in
paragraph (1)(f); or
(b) the end of the period or further period mentioned in that paragraph.
(4) Where the applicant has notified the agency or Minister, in a manner mentioned
in subparagraph (1)(f)(i ), that the applicant contends that the charge should be reduced or
not imposed, the agency or Minister may decide that the charge is to be reduced or not to be
imposed.
7
(5) Without limiting the matters the agency or Minister may take into account in
determining whether or not to reduce or not to impose the charge, the agency or Minister
must take into account:
(a) whether the payment of the charge, or part of it, would cause financial
hardship to the applicant, or to a person on whose behalf the application was made; and
(b) 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.
(6) If the applicant has notified the agency or Minister in the manner mentioned in
subparagraph (1)(f)(i ), the agency or Minister must take al reasonable steps to enable the
applicant to be notified of the decision on the amount of charge payable as soon as
practicable but in any case no later than 30 days after the day on which the applicant so
notified the agency or Minister.
(7) If:
(a) that period of 30 days has elapsed since the day on which the agency or
Minister was so notified; and
(b) the applicant has not received notice of a decision on the amount of charge
payable;
the principal officer of the agency, or the Minister, as the case requires, is, for al purposes of
this Act, taken to have made, on the last day of the period, a decision to the effect that the
amount of charge payable is the amount equal to the agency’s or Minister’s preliminary
assessment of the amount of the charge mentioned in paragraph (1)(b).
(8) If:
(a) the applicant makes a contention about a charge as mentioned in
subsection (4); and
(b) the agency or Minister makes a decision to reject the contention, in whole
or in part;
the agency or Minister, as the case requires, must give the applicant written notice of the
decision and of the reasons for the decision.
Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents
of a statement of reasons.
(9) A notice under subsection (8) must also state the name and designation of the
person making the decision and give the applicant appropriate information about:
(a) his or her rights with respect to review of the decision; and
(b) his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(c) the procedure for the exercise of those rights;
including (where applicable) particulars of the manner in which an application for internal
review (Part VI) and IC review (Part VII) may be made.
(10) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not
apply to a decision referred to in subsection (8).
(11) A notice under subsection (8) is not required to contain any matter that is of
such a nature that its inclusion in a document of an agency would cause that document to be
an exempt document.
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31 Decision to impose charge—extended period for processing request
Scope
(1) This section applies if:
(a) on a particular day (the charge notice day) an applicant in relation to a
request receives a notice under subsection 29(1) or (6) to the effect that the applicant is
liable to pay a charge in respect of the request; and
(b) the notice is received before the end of the period (the processing period)
applicable under paragraph 15(5)(b) in relation to the request (or that period as extended).
Processing period to be calculated disregarding period when charge unpaid
(2) In working out the length of the processing period (or that period as extended)
for the purposes of paragraph 15(5)(b), disregard the number of days in the period starting
on the charge notice day and ending on the earliest occurring of the fol owing days:
(a) the day the applicant pays the amount of the charge (or a deposit on
account of the charge prescribed by the regulations), whether or not the decision to impose
the charge has been considered under section 29, or is the subject of a review under this
Act;
(b) if the amount of the charge is changed under section 29, or fol owing a
review under this Act—the day the applicant pays the amount of the charge (or a deposit on
account of the charge prescribed by the regulations) as changed fol owing the review;
(c) if, under section 29, or fol owing a review under this Act, a decision is made
with the effect that the charge is not imposed—the day the applicant is notified of the
decision.
Note: A decision under section 29 relating to the imposition of a charge or the amount
of a charge may be the subject of an internal review (see Part VI), an IC review (see
Part VII) or review by the Tribunal (see Part VIIA).
Freedom of Information (Charges) Regulation 1982
Regulation 3 Liability to pay charges
(1) Where an applicant has made a request for access to a document of an agency or
an official document of a Minister, the agency or Minister may make a decision whether the
applicant is liable to pay, in respect of the request or in respect of the provision to the
applicant of access to the document, any of the charges applicable under these Regulations.
(2) Where an agency or a Minister has, under subregulation (1), made a decision that
an applicant is liable to pay a charge, then, except where regulation 8, 9 or 10 applies, the
charge is payable by the applicant in the amount or at the rate fixed by, or in accordance
with, the Schedule.
Regulation 4 Charges applicable generally
Subject to these Regulations:
(a) the charges set out in Part I of the Schedule are applicable in respect of a
request for access to a document; and
(b) the charges set out in Part II of the Schedule are applicable in respect of the
provision of access to a document to which a request relates.
9
Regulation 11 Charges to be paid before access is granted
(1) Subject to subregulation (2), where an applicant is liable to pay a charge in
respect of a request for access to a document or in respect of the provision of access to the
document, the charge shal be paid to the relevant agency or the relevant Minister before
access is granted to the document.
(2) Subregulation (1) does not apply to or in relation to a charge of a kind referred to
in Item 1 of Part II of the Schedule except where the charge is payable in an amount fixed in
accordance with subregulation 9 (3).
(3) In this regulation, ‘charge’ does not include a charge or any part of a charge that
has been remitted.
Regulation 12 Deposits
(1) Where:
(a) an agency or a Minister has made a decision that an applicant is liable to
pay, in respect of a request or in respect of the provision of access to the document to which
the request relates, a charge or charges; and
(b) the amount, or the estimated amount, of that charge or of those charges
exceeds $25;
the agency or Minister may make a decision whether the applicant is required to pay a
deposit on account of the charge or charges that the applicant is liable to pay under these
Regulations.
(2) Where an agency or a Minister has made a decision that an applicant is required
to pay a deposit on account of the charge or charges that the applicant is liable to pay under
these Regulations, the amount of the deposit is such amount not exceeding:
(a) where the amount, or the estimated amount, of the charge or charges
exceeds $25 but does not exceed $100 — $20; or
(b) where that amount or estimated amount exceeds $100 — 25 per centum of
that amount or estimated amount;
as is determined by the agency or Minister.
Schedule
Part I Charges applicable in respect of a request for access to a document
(regulation 4)
Item No
Charge
Amount or Rate of Charge
2
Where the request relates to a document other than
$15.00 per hour
a document in relation to which a charge is
applicable under item 3 — a charge in respect of the
time spent by the relevant agency or the relevant
Minister in searching for or retrieving the document
3
Where the request, being a request made to an
an amount not exceeding the actual cost
agency, is in respect of information that is not
incurred by the agency in producing the
available in discrete form in documents of the
document
agency — a charge in respect of the production of a
document containing the information in discrete form
by the use of a computer or other equipment that is
ordinarily available to the agency for retrieving or
collating stored information
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Item No
Charge
Amount or Rate of Charge
4
Where
$4.40 per page of transcript
(a) the request relates to a document by which
words are recorded in a manner in which they are
capable of being reproduced in the form of sound or
in which words are contained in the form of
shorthand writing or in codified form; and
(b) for the purpose of making a decision on the
request, a written transcript of the words recorded or
contained in the document is produced, a charge in
respect of the production of such a written transcript
5
A charge in respect of the time that is spent (other
(a) zero for the first 5 hours; and
than on an application under section 54 or 54A of the
Act for the review of a decision) by an agency or
(b) $20 for each subsequent hour
Minister in deciding whether to grant, refuse or defer
access to the document or to grant access to a copy
of the document with deletions, including time spent
(a) in examining the document;
(b) in consultation with any person or body;
(c) in making a copy with deletions; or
(d) in notifying any interim or final decision on the
request
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Part II Charges applicable in respect of the provision of access to a document to which a
request relates
(regulation 4)
Item No
Charge
Amount or Rate of Charge
1
Where access to the document to which the request
if the period does not exceed half an
relates is given
hour — $6.25
(a) in the form of an opportunity to inspect the
if the period exceeds half an hour, for each
document under the supervision of an officer; or
half-hour, and any period not exceeding
half an hour, included in the period —
(b) in the case of a document that is an article or
$6.25
thing from which sounds or visual images are capable
of being produced — in the form of arrangements for
the applicant to hear or view those sounds or visual
images under the supervision of an officer,
a charge in respect of the period during which the
officer supervises the inspection, hearing or viewing,
as the case may be
2
Where the request relates to a written document and
10 cents per page
access to the document is given in the form of the
provision of a photocopy of the document — a charge
in respect of the number of pages of photocopy
provided to the applicant
3
Where the request relates to a written document and
$4.40 per page
access to the document is given in the form of the
provision of a copy (other than a photocopy) of the
document — a charge in respect of the number of
pages of copy provided to the applicant
4
Where
an amount not exceeding the actual costs
incurred by the agency in producing such
(a) the request, being a request made to an agency, a copy of the document
is in respect of information (in this item referred to as
the ‘relevant information’) that is available in discrete
form in a document produced (whether for the
purposes of the request or not) by the use of a
computer or other equipment that is ordinarily
available to the agency for retrieving or col ating
stored information;
(b) deletions are made from the document before
access to it is given to the applicant; and
(c) it is not reasonably practicable to make these
deletions otherwise than by the use of a computer or
other equipment referred to in paragraph (a), a charge
in respect of the production by the computer or other
equipment of a copy of the document with those
deletions
4A
A charge for the production by an agency of a copy of
an amount that does not exceed the actual
a document in the form of a computer tape or a
costs incurred by the agency in producing
computer disk
the copy of the document
5
Where
an amount not exceeding the actual costs
incurred by the relevant agency or Minister
in respect of those arrangements
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Item No
Charge
Amount or Rate of Charge
(a) the request relates to a document that is an
article or thing from which sounds or visual images are
capable of being produced; and
(b) access to the document is given in the form of
arrangements for the applicant to hear or view those
sounds or visual images, a charge in respect of the
arrangements so made other than any arrangements
in respect of which a charge is applicable under Item 1
6
Where
an amount not exceeding the actual costs
(including, where applicable, the cost of
(a) the request relates to a document that is an
any tape, film or other article or thing
article or thing from which sounds or visual images are provided) incurred by the relevant agency
capable of being produced; and
or Minister in producing the copy
(b) access is given in the form of the provision of a
copy of the document, a charge in respect of the
production of the copy so provided
7
Where
$4.40 per page of transcript
(a) the request relates to a document by which
words are recorded in a manner in which they are
capable of being reproduced in the form of sound or in
which words are contained in the form of shorthand
writing or in codified form;
(b) access is given in the form of the provision of a
written transcript (with or without deletions) of the
words recorded or contained in the document; and
(c) the applicant has not paid, or is not liable to pay,
as a charge in respect of the request for access to the
document, a charge in respect of the production of
such a written transcript, a charge in respect of the
production of that written transcript
8
Where
an amount not exceeding the cost of
postage or delivery
(a) access to the document to which the request
relates is to be given in the form of the provision of a
copy of the document; and
(b) the copy so provided is, at the request of the
applicant, to be sent by post or delivered to him,
a charge in respect of the posting or delivery of the
copy
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