Department Reference: FOI 3079 IR
Mr Steve Roddis
Via email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Roddis
NOTICE OF DECISION – INTERNAL REVIEW – CHARGES
FREEDOM OF INFORMATION REQUEST 3079
I refer to your request of 16 September 2021 to the Department of Health (the
department) requesting access to the following documents under the
Freedom of
Information Act 1982 (the FOI Act):
I'm requesting a copy of each National Immunisation Program Schedule[1],
Childhood Vaccination Schedule, or equivalently named documents that exist
historically.
To clarify the website [1] contains documents for 2021, I'm requesting similar
documents that exist but for all other years.
I've managed to find a document on school based vaccinations [2] however this
does not cover vaccinates given to babies, at doctors and outside school.
No personal information is requested.
I realise some documents may not exist anymore, that is okay.
[1
] https://www.health.gov.au/health-topics/immunisation/immunisation-
throughout-life/national-immunisation-program-schedule
[2
] https://www1.health.gov.au/internet/main/publishing.nsf/Content/cda-
cdi3702-pdf-cnt.htm/$FILE/cdi3702j.pdf
On 10 November 2021, the department notified you of your liability to pay a charge of
$90 in relation to the processing of your FOI request.
On the same day, you wrote to the department seeking clarification regarding the
contents of the email imposing the charge and requesting an internal review of the
decision to impose the charge.
Freedom of Information Unit (MDP 516) GPO Box 9848 Canberra ACT 2601
Telephone: (02) 6289 1666 ABN: 83 605 426 759
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Response to your queries
Who is the Director?
You have asked what the term “the Director” in the email imposing the charge refers
to, and whether the Director has authority to make decisions.
The Director of the department’s Freedom of Information (FOI) Unit is an Executive
Level officer. The Secretary of the department has authorised the Director, under
subsection 23(1) of the FOI Act, to make certain decisions under the FOI Act, including
decisions relating to the imposition of charges.
Additional information about authorised decision makers for the purposes of the FOI
Act is available on the website of the Office of the Australian Information
Commissioner (OAIC) here:
https://www.oaic.gov.au/freedom-of-information/guidance-and-advice/making-a-
decision-on-an-foi-access-request
How was the charge calculated?
You have also requested information about how the charge was calculated.
The charge was calculated in accordance in accordance with section 29 of the FOI Act
and the
Freedom of Information (Charges) Regulations 2019 (the FOI Charges Regulations)
according to the amount of time departmental officers spent searching the
department’s various electronic databases and hard copy holdings, reviewing the
content of each document identified as relevant to determine whether those
documents contain exempt and/or irrelevant material, and preparing the decision
letter.
Additional information about how charges are calculated is available on the OAIC
website here:
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-4-charges-
for-providing-access
Internal Review Decision
I am authorised under subsection 23(1) of the FOI Act to make decisions in relation to
freedom of information (FOI) requests, including requests for internal review.
I am writing to notify you of my decision in response to your request for internal
review.
In making my decision not to waive or reduce the charge of $90, I had regard to:
• the scope of your request
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• the content of the documents identified as falling within scope of your
request
• the charge notice
• the content of your email requesting internal review of imposition of the
charge
• the relevant provisions of the FOI Act and the FOI Charges Regulations, and
• the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the FOI Guidelines).
My findings of fact and reasons for deciding not to waive or reduce the charge are set
out below.
Subsection 29(5) of the FOI Act does not limit the matters an agency may consider in
making a decision on whether to impose or waive a charge. However, subsection 29(5)
of the FOI Act requires a decision maker, in deciding whether or not to waive or
reduce the charges, to take into account:
• whether paying the charge would cause financial hardship to you, and
• whether giving access to the documents is in the general public interest or in
the interest of a substantial section of the public.
Public Interest
According to paragraph 4.5 of the FOI Guidelines, the amount of any charge imposed
should be:
• determined bearing the objects of the FOI Act in mind
• reasonable, taking into account all relevant factors, and
• proportionate to the cost of making a decision and providing access.
Paragraph 4.6 of the FOI Guidelines also provides that a charge should fairly reflect
the work involved in providing access to documents.
Based on the number of documents identified as relevant to your request and the time
it took departmental officers to locate and review those documents and prepare the
decision letter, I am satisfied that the charge imposed is consistent with paragraphs 4.5
and 4.6 of the FOI Guidelines.
Paragraphs 4.105 to 4.107 of the FOI Guidelines provide as follows:
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 can be distinguished from, public interest considerations that may arise under
other provisions of the FOI Act.
Specifically, the public interest in s 29(5)(b) is different to the public interest test in
s 11A(5) that applies to conditionally exempt documents. Nor will s 29(5)(b) be
satisfied only by a contention that it is in the public interest for an individual with
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a special interest in a document to be granted access to it, or that an underlying
premise of the FOI Act is that transparency is in the public interest.
An applicant relying on s 29(5)(b) should identify or specify the ‘general public
interest’ or the ‘substantial section of the public’ that will benefit from this
disclosure (s 29(1)(f)(ii)). This may require consideration of both 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.
In addition, paragraph 4.97 of the FOI Guidelines provides as follows:
Moreover, an agency or minister should always consider whether disclosure of a
document will advance the objects of the FOI Act, even if the applicant has not
expressly framed a submission on that basis. The objects of the FOI Act include
promoting better informed decision making, and increasing scrutiny, discussion,
comment and review of the Government’s activities (s 3).
Your FOI request seeks access to Immunisation and Vaccination Schedules, and you
provided the following contentions in support of your request for a waiver of the
charge:
I submit there is an overriding public interest in releasing proactive or otherwise
the "National Immunisation Program Schedule, or equivalently named
documents" and that all costs should be waived
The department acknowledges that some members of the community may be
interested in these Schedules, which is why the department has ensured the
2021 Schedules are publicly available on the internet. However, it is not clear to the
department what public benefit would flow from the release of the documents you
seek.
I am not satisfied that there would be a benefit from the release of the documents
you seek flowing to the public in general or a substantial section of the public
Paragraph 4.99 of the FOI Guidelines lists some of the matters that may weigh against
waiving or reducing a charge which relevantly including where “the documents are
primarily of interest only to the applicant and are not of general public interest or of
interest to a substantial section of the public”.
In
MacTiernan and Secretary, Department of Infrastructure and Regional Development
(Freedom of information) [2015] AATA 584 at paragraph 30, the Administrative Appeals
Tribunal, in considering whether to waive a charge on public interest grounds,
compared the number of documents identified as within the scope of the request and
the cost of processing the request against the subject matter of the request.
Having regard to the breadth of your FOI request, the cost of processing the request
and the subject matter of your request and the relatively small amount of the charge
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imposed, I am satisfied that the charge of $90 is reasonable and should not be waived
or reduced.
Please note that my decision on public interest goes only to the question of whether
the charges should be imposed, and not to the issue of whether the documents should
ultimately be disclosed.
I am therefore satisfied that the charge of $90 should not be waived nor reduced on
public interest grounds.
Financial hardship
As you have not raised the issue of financial hardship or provided evidence to
indicate that payment of the charge would cause you financial hardship, I find that the
charge should not be reduced on this ground.
Other considerations
As noted above, subsection 29(5) of the FOI Act does not limit the matters an agency
may consider in making a decision on whether to impose or waive a charge.
In
Australian Associated Press Pty Ltd and Department of Foreign Affairs and Trade
(Freedom of Information) [2018] AlCmr 13, the former Information Commissioner said at
[20]:
The general discretion to reduce or not impose a charge is not limited to financial
hardship and public interest grounds. An FOI decision maker should also consider
any other relevant factors, including whether disclosure of a document would
advance the objects of the FOI Act (for example, by promoting Australia’s
representative democracy by contributing towards increasing scrutiny, discussion,
comment and review of the Government’s activities), even where an applicant has
not expressly framed a submission on that basis.
In
Tennant and Australian Broadcasting Corporation [2014] AATA 452, the
Administrative Appeals Tribunal said at [14] and [15]:
… Other matters may also be considered. One such matter is the intention
discernible in the imposition of the charge that the amount should reflect the time
and effort involved in accessing the requested documents. That factor takes into
account the time spent searching for or retrieving the document, in examining the
document and making any deletions, in making a document available in a usable
form, in production of a written transcript, and in arranging for the inspection,
viewing, or listening to a recording of a stored image, or in copying and delivery
of the relevant document.
In other words, there is an intention that a user pays principle should apply. That
is reflected in the Guidelines which state that there can be a charge for the ‘actual
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costs’ incurred by an agency. The Act also provides that if a charge is imposed, no
access is granted until the charge is paid.
I have no additional information available to me on which to base a decision to reduce
or waive the charges in relation to this request.
Effect of my decision
As a consequence of this decision, you are liable to pay a charge of $90.
I have also decided, consistent with paragraph 29(1)(e) of the FOI Act and clause 12 of
the FOI Charges Regulations, that you are required to pay a deposit in the amount of
$20. Payment of the deposit will be taken as your authority to proceed with the
processing of your request and your agreement to pay the balance of the charge in
full.
You will become liable for the full amount of the charge and you will not receive
access to any documents a decision maker may decide to release to you until the
outstanding balance is paid.
The department can accept credit card, money order or cheque payments.
If you choose to pay by cheque (personal or bank) or money order it should be sent to:
FOI Unit (MDP 516)
Department of Health
GPO Box 9848
CANBERRA ACT 2601
If you wish to pay by credit card, please contact the department’s FOI Unit on
(02) 6289 1666 to be further advised
FOI review rights
If you are dissatisfied with my decision, under section 54L of the FOI Act, you may
apply to the OAIC for review of my decision by the Information Commissioner (IC).
In accordance with subsection 54S(1) of the FOI Act, an IC review application in
relation to a decision covered by subsection 54L(2) (access refusal decisions) must be
made in writing within 60 days after the day you are notified of this internal review
decision.
More information about IC review is available on the OAIC website at:
https://www.oaic.gov.au/freedom-of-information/reviews/
The OAIC can be contacted by:
Email:
xxxxxxxxx@xxxx.xxx.xx
Phone:
1300 363 992
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Complaints
If you are dissatisfied with actions taken by the department, you may also make a
complaint.
Complaint to the department
Complaints to the department are covered by the department’s privacy policy. A form
for lodging a complaint directly to the department is available on the department’s
website:
https://www.health.gov.au/about-us/contact-us/complaints
Complaint to the IC
Information about making a complaint to the IC about action taken by the department
is available on the OAIC website:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-
an-foi-complaint/
The FOI Act and the FOI Charges Regulations
The FOI Act, including the provisions referred to in this letter, can be accessed from
the Federal Register of Legislation website:
https://www.legislation.gov.au/Details/C2021C00219
The FOI Charges Regulations, including the provisions referred to in this letter, can
also be accessed from the Federal Register of Legislation website:
https://www.legislation.gov.au/Details/F2019L00348
Contacts
If you require clarification of any of the matters discussed in this letter, you should
contact the Freedom of Information Unit on (02) 6289 1666 or a
t xxx@xxxxxx.xxx.xx.
Yours sincerely
Stephen Bouwhuis
General Counsel
Legal Advice and Legislation Branch
November 2021
