If not delivered return to PO Box 7820 Canberra BC ACT 2610
11 February 2015
Ms Vera Lystich
Our reference: LEX 12004
By email: xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Lystich
Your Freedom of Information Request – Charge decision
1. I refer to your request dated 15 January 2015 and received by the Department of Human
Services (the
department) on the same date, for access under the
Freedom of Information Act
1982 (the
FOI Act) to the following:
‘Copies of reports into ‘suspected breaches of the APS Code of Conduct’ by Centrelink staff
at the Boronia, Ringwood or Lilydale Centrelink Service Centres in Victoria.
…
To assist in processing my request, I am willing to limit its scope to only those documents
prepared since January 2010, to the present. I am, of course, expecting the personally-
identifying information of the individuals involved to be redacted.’
2. I am an authorised decision-maker under section 23(1) of the FOI Act.
Decision on Charge
3. The following is my decision in relation to your request for reduction or non-imposition of the
charge imposed under the FOI Act (the
Charge) and the reasons for my decision.
4. I have decided to reduce the amount of the charge that was notified to you by 50% to
$60.78.
Background
5. On 28 January 2015, the department notified you of the preliminary estimate of the charge for
the processing your freedom of information (
FOI) request, calculated as follows:
Search and retrieval time: 0.97 hours, at $15.00 per hour:
$14.55
Decision-making time (*after deduction of 5 hours): 5.35 hours, at
$20.00 per hour
$107.00
TOTAL
$121.55
*The FOI Act provides that the first five hours of decision making time are free of charge and this is
reflected in the calculation.
PAGE 1 OF 8
6. On 29 January 2015, you wrote to the department by email, contending that the charge not be
imposed on financial hardship grounds, public interest grounds, on the grounds of the Office of
the Australian Information Commissioner’s guidelines on the application of section 11C of the
FOI Act and on the grounds that the charge was incorrectly calculated pursuant to section
29(1)(f)(ii) of the FOI Act.
Material Considered
7. I have taken the following material into account in making my decision:
the department’s correspondence of 28 January 2015, notifying you of the charge;
your correspondence of 29 January 2015, contending that the charge should not be
imposed;
documents falling within the scope of your request;
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 (the
Guidelines).
Relevant legislation
8. Subsection 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.
9. 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.
10. 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, then the agency must give the applicant written notice of the decision and the
reasons for the decision.
Calculation of the charge
11. As a preliminary step in my consideration of whether a processing charge should apply to this
request, I have examined the calculations which were used to determine the charge.
12. The Charge notified to you on 28 January 2015, totalled
$121.55 and was calculated on the
basis set out in paragraph 5, above.
13. In calculating processing charges for FOI requests, the department applies relevant provisions
of the Regulations, the FOI Act and the Guidelines in relation to the amounts it is permitted to
charge.
14. The department calculates the amount it may charge based on:
the time taken to search for, and retrieve, files containing documents within scope;
the number of third parties with whom it will be necessary to consult in the course of
making a decision regarding the release of the documents;
PAGE 2 OF 8
Department of Human Services
the number and size (number of pages) of the documents that have been identified as
falling within the scope of the requests and the resultant time taken for decision-making
in relation to each of those pages (less the first five hours of decision-making, which are
free of charge; and
the number of pages considered sensitive, requiring redaction (and therefore potentially
extra decision-making time).
15. Based on estimates and documents received from the department’s People Services Division, it
was estimated that it had taken approximately 0.97 hours to locate and collate the relevant
documents, and would take a further 10.35 hours to examine the documents, undertake any
necessary consultation and prepare a decision on access.
16. Having examined the documents within the scope of your request, the calculation of the charge
and the reasoning behind it, I am of the view that the Charge calculated fairly reflects the work
involved in processing your request and is a fair contribution towards the cost of processing your
request.
Reasons for decision
17. I note that subsection 29(5) of the FOI Act prescribes matters that I must take into account. My
consideration of those matters is set out below.
Financial Hardship
18. Paragraph 29(5)(a) of the FOI Act provides that, without limiting the matters an agency may
take into account in determining whether or not to reduce or not to impose the charge, the
agency must take into account whether the payment of the charge, or part of it, would cause
financial hardship to the applicant.
19. Paragraph 4.52 of the Guidelines provides that, in applying paragraph 29(5)(a) of the FOI Act,
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 charge.
Financial hardship means more than an applicant having to meet a charge from his or her own
resources.
20. In your email of 29 January 2015, you requested that the charge be waived as the charge
“…would constituted approximately a third (32.4%) of my weekly disposable income”..
21. On 11 February 2015, the department received a copy of your fortnightly household budget as
evidence of your financial hardship.
22. On the basis of this evidence, I have decided that imposing the charge would cause you
financial hardship such that the department should reduce the amount of the charge.
Public Interest
23. Paragraph 29(5)(b) of the FOI Act provides that, without limiting the matters the agency may
take into account in determining whether or not to reduce or not to impose the charge, the
agency must take into account 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.
PAGE 3 OF 8
Department of Human Services
24. Relevantly, paragraph 4.55 of the Guidelines states:
“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 disclosure. This may require
consideration both of the content of the documents requested and the context in which their
public release would occur”.
25. In addition, paragraph 4.54 of the Guidelines state that:
“…the public interest test for waiver in s 29(5)(b) is different to the public interest test in s
11A(5) that applies to conditionally exempt documents.”
26. In your email of 29 January 2015, you refer to
Carver and Fair Work Ombudsman [2011] AICmr
5 (27 July 2011) (the
Carver case) and submit that:
“The Office of the Australian Information Commissioner (OAIC)'s Freedom of Information
guidelines confirm that you may waive or vary a charge if releasing the document in
question would be in the general public interest (1)*.
In "Carver and Fair Work Ombudsman"(2)*, a similar case involving the release of
documents relating to APS Code of Conduct investigations, the FOI Commissioner found
that:
"the principal factor favouring disclosure in this IC review is the importance of transparency
in investigations of the work-related conduct of public officials… the public interest in
ensuring that complaints… are properly and appropriately investigated and dealt with."
On this basis, given there is precedent that the release of reports of APS Code of Conduct
investigations is in the public interest, I contend the charge should not be imposed.”
* footnotes have been omitted.
27. I am not persuaded by these submissions, for the following reasons:
the comments made by Dr Popple in the Carver case relate to the application of the
public interest test in the context of an exemption rather than in relation to the application
of charges;
the facts and documents in the Carver case differ from the documents within the scope
of your request;
the Carver Case does not create a precedent that the release of reports regarding APS
Code of Conduct investigations are in the public interest;
it is well established principle that the decisions of administrative bodies, such as the
Information Commissioner, while instructive, do not establish precedent. Rather, each
matter before an administrative body will be determined on its merits; and
you have not identified the ‘general public interest’ or the ‘substantial section of the
public’ that would benefit from disclosure.
28. Given the above, I have decided that there is no public interest in reducing or waiving the
charge.
PAGE 4 OF 8
Department of Human Services
Other grounds for reduction of the charge
29. Subsection 29(4) of the FOI Act provides a general discretion to reduce or not to impose a
charge which goes beyond matters relating to financial hardship and the public interest. In
considering this general discretion, I have had regard to whether the charge imposed
appropriately reflects the cost of processing your request and whether the documents within the
scope of your request are similar to documents that have been published on the department’s
website under section 11C of the Act.
30. With regard to whether the charge imposed appropriately reflects the cost of processing your
request, as outlined above, I consider that the calculation of the charge fairly reflects the work in
processing your request. I note that processing charges are designed to be a contribution to the
cost of processing FOI requests and do not compensate the full costs associated with the
processing of a request.
31. I note also that, in recognition of the general public interest in allowing access to government
information, the FOI Act provides for the first five hours of decision-making time to be free of
charge for all applicants. This discount was applied to the calculation of the charge notified to
you on 28 January 2015.
32. In regard to whether the documents within the scope of your request are similar to documents
that have previously been published on the department’s website under section 11C of the Act,
I consider that the documents within the scope of your request are broadly similar to the
documents published on 16 October 2012. However, it is important to note that every code of
conduct matter is unique. I have decided that this point, on its own, does not warrant a
reduction in charges in this instance.
Conclusion
33. On balance, after weighing the arguments that you have submitted, I have decided to reduce
the amount of the Charge by 50%. The amount payable by you is
$60.78.
Options to proceed with your request
34. 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 following options:
A. Pay the Charge (or deposit of
$15.19);
B. Request a review of the decision to impose the charge; or
C. Withdraw your request.
35. Further information on each of these options is set out below.
Option A – Pay the Charge
36. The amount due should be paid by cheque or money order and made out to the Collector of
Public Monies. Please quote reference number LEX 12004 with your payment.
37. Please send this cheque or money order to:
FOI and Information Release Branch
Legal Services Division
Department of Human Services
18 Canberra Ave, Forrest ACT 2603
PAGE 5 OF 8
Department of Human Services
38. If you elect to pay the reduced charge amount, please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx once you have posted your cheque or money order to
advise us of your payment.
Option B – Request a review of the decision to impose the Charge
39. Please find attached a document setting out your rights of review at
Attachment A.
Option C – Withdraw your request
40. If you wish to withdraw your request, you may do so in writing. Alternatively, you may wish to
consider narrowing the terms of your request. If the scope of your request can be reduced, the
charge may be recalculated accordingly.
Further Information
41. Should you have any enquiries concerning this matter, please contact me at
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx.
Yours sincerely,
FOI Delegate
FOI and Information Release Branch
Department of Human Services
PAGE 6 OF 8
Department of Human Services
Attachment A
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The
Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of
this decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this
decision by:
(i)
an internal review officer in the Department of Human Services; or
(ii)
the Information Commissioner.
Internal Review
If you apply for internal review, it will be carried out by a different decision-maker who will
make a fresh decision on your application. An application for review must be:
• made in writing;
• made within 30 days of receiving this letter; and
• sent to the address at the head of this letter.
No particular form is required, but it is desirable to set out in the application the grounds
upon which you consider the decision should be reviewed.
If the internal review officer decides not to grant you access to all of the documents to which
you have requested access, you have the right to seek a review of that decision by the
Information Commissioner. You will be further notified of your rights of review at the time
you are notified of the internal review decision.
Please note that if you apply for an internal review and a decision is not made by an internal
review officer within 30 days of receiving the application, you have the right to seek review
by the Information Commissioner for a review of the original FOI decision on the basis of a
'deemed refusal' decision, An application for Information Commissioner review in this
situation must be made within 60 days of the date when the internal review decision should
have been made (provided an extension of time has not been granted or agreed).
PAGE 7 OF 8
Department of Human Services
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can
lodge your application in one of the following ways:
Online: www.oaic.gov.au
Post: GPO Box 2999, Canberra ACT
2601
Fax: +61 2 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
If a person has sought an internal review and no result of that review is provided within 30
days, then the applicant may apply to the Information Commissioner to review the matter.
An application form is available on the website at www.oaic.gov.au. Your application should
include a copy of the notice of the decision that you are objecting to (if one was provided),
and your contact details. You should also set out why you are objecting to the decision.
Complaints to the Commonwealth Ombudsman and Information Commissioner
Commonwealth Ombudsman
You may 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.
Information Commissioner
You may also 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
Office of the Australian Information Commissioner (OAIC) is disbanding
Please note: The Australian Government announced as part of the 2014-15 Budget that
the Office of the Australian Information Commissioner (OAIC) will be disbanded. The OAIC
remains operational until further notice.
For further information on how the OAIC will deal with IC reviews and FOI complaints
please visit their website at www.oaic.gov.au
PAGE 8 OF 8
Department of Human Services
