Freedom of Information
Working with Aboriginal and Torres Strait Islander peoples
OFFICIAL
FREEDOM OF INFORMATION ACT 1982
REQUEST BY: Dallas (Right to Know)
Notice of Charges Decision
Email: D
allas xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Dallas,
Freedom of information request ref. FOI/2122/020
1. I refer to your email to the National Indigenous Australians Agency (
NIAA) on 19 March 2022 in which you
requested a waiver of charges under section 29(1)(f)(ii) of the
Freedom of Information Act 1982 (the
FOI Act).
2. I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to FOI requests.
Charges Decision
3. I have decided under section 29(4) of the FOI Act to reduce the charge amount by 50%.
4. The amount you are liable to pay is
$302.35. A deposit of 10% being
$30.24 is payable.
5. Once your FOI request has been processed, I wil determine the actual charge you must pay before the
documents can be provided to you. The final charge for processing your request may be different from the
estimate quoted in this letter.
6. Your rights to seek review under the FOI Act or submit a complaint are set out in
Attachment A to this notice.
7. I have set out the reasons for my decision in more detail below.
Your request for access to documents
8. On 22 February 2022, you made a request to the NIAA under the FOI Act for access to the fol owing
documents (summarised):
“
I am requesting a copy of all documents, including but not limited to briefs, policy documents, timelines and
strategic planning documents prepared by the NIAA since 21 December 2021 to 21 February 2022 relating to
incoming government briefs, policy options for incoming Governments, including references to Red or Blue
Books (or other phrases commonly related to incoming Governments).
Excluding communications:
- bodies of emails
- mobile messages
- instant messaging application messages”
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9. On 10 March 2022, you were advised that the cost associated with processing your request was $604.70.
10. On 19 March 2022, you wrote to the NIAA to contest the estimate of charges on public interest grounds.
Reasons for decision
11. In considering your request that charges are waived, I have taken into account subsection 29(5) of the FOI Act
which provides:
“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.”
12. In addition, the
Freedom of Information (Charges) Regulations 2019 (the
Charges Regulations) and Chapter 4
of the guidelines made by the Office of the Australian Information Commissioner under section 93A of the FOI
Act (the
FOI Guidelines) set out the matters I must have regard to in considering a request to waive or reduce
a charge.
Public interest
13. Subsection 29(5) of the FOI Act requires me to take into account whether granting access to the documents
would be in the public interest or in the interest of a substantial section of the public. In considering these
matters, the FOI Guidelines say it is important to identify the ‘general public interest’ or the ‘interest of a
substantial section of the public’ that would benefit from disclosure.
14. You submitted that the documents sought are in the general public interest, as well as the interest of a
substantial section of the public. In particular, I have taken into account your submission that:
o incoming government briefs (
IGB) are being prepared outside the official caretaker period;
o content of the documents relate to the official distinctions between policy platforms; and
o general public interest, or a substantial section of the public include first nations people and
wider communities.
15. In addition, I have had regard to the subject matter of the requested documents. I note the request relates to
the preparation of incoming government briefs. I consider the giving of access to the requested documents
may be in the general public interest, or in the interest of a substantial section of the public, because they
relate to a general election of the Commonwealth government, and the matters dealt with impact vulnerable
groups in the broader Australian community.
16. Although the role and utility of the IGB in the lead up to an election is wel founded, the key consideration in
this case is that preparation of the IGB commenced outside the official caretaker period, and that will likely be
of interest to the general public or a substantial section of the public, particularly as the documents relate to
the Indigenous Australians portfolio.
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Financial hardship
17. On the issue of financial hardship, paragraphs 4.101 of the FOI Guidelines relevantly states:
“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 estimate charges. Financial hardship means
more than an applicant having to meet a charge from his or her own resources.”
18. In the decision of
‘AY’ and Australian Broadcasting Corporation, the Information Commissioner accepted the
definition of financial hardship in guidelines issued by the Department of Finance for the purpose of debt
waiver decisions:
“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.”
19. You have not contended that the payment of the charge would cause you financial hardship. In the absence
of any information provided by you to indicate that payment of the charge will cause you financial hardship, I
have decided that, in this instance, there are no financial hardship grounds to make a decision to waive or
reduce the charge.
Other matters
20. In making my decision, I have also taken into account the following factors relevant to processing your FOI
request:
• The resourcing required for the NIAA to process this request, having regarding to the fol owing:
o number of documents and pages relevant to the request;
o hours taken to search for, and retrieve, documents relevant to the request;
o number of third parties to be consulted in the course of making a decision about each document;
o sensitive nature of the documents, which concern discussions and briefing when both the
election outcome and the identity of the new Minister are unknown, requiring careful review and
consideration;
o the NIAA being a small executive agency that does not have staff whose role is to solely work on
FOI matters; and
o current and ongoing pandemic has constrained resourcing across the agency more broadly.
Conclusion
21. For the reasons set out above, I am satisfied that the documents are within the general public interest, or of
interest to a substantial section of the public. I have also given consideration to the amount of work required
to process the request.
22. Accordingly, I have decided to reduce the charges that can be imposed for the processing of your request by
50%.
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