Internal Review Decision Charges LEX 12669.pdf

If not delivered return to PO Box 7788 Canberra BC ACT 2610

8 April 2015

Mr Ben Fairless

Our reference:  LEX 12669
By email:  foi+request-897-
xxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Fairless

Freedom of Information Request: LEX 12669 – Notice of Internal Review Decision on
Charges

1.  I refer to your correspondence, dated 9 March 2015 and received by the Department of
Human Services (the department) on the same date, in which you requested internal
review of the department's decision to waive the processing charge for your FOI request
LEX 12236.

2.  I am an authorised decision-maker under section 23(1) of the Freedom of Information
Act (the FOI Act). As you have requested an internal review, I am also a separate
decision-maker to the FOI Delegate involved with LEX 12236.
Background

3.  On 12 February 2015, you requested access under the FOI Act to the following
documents:

‘106-03010000 First Contact Service Offer (FCSO)
106-03010010 Opening the First Contact Service Offer application
106-03010020 Running the First Contact Service Offer (FCSO)
106-03010030 First Contact Service Offer screens and functions’

4.  On 16 February 2015, the department issued you with a preliminary assessment of the
charges involved in processing your request (as the documents contained non-personal
information). The department also advised you in this correspondence that four
documents (totalling 46 pages) had been identified as falling within the scope of your
FOI request.  In accordance with section 29 of the FOI Act, it was determined that you
were liable to pay an estimated charge of $24.03 for the processing your FOI request.

5.  On 16 February 2015, you wrote to the department by email, seeking that the charge not
be imposed on the grounds that the charge was incorrectly calculated pursuant to
subparagraph 29(1)(f)(ii) of the FOI Act because, you contended, the requested
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information should be available through the department’s Information Publication
Scheme (the IPS).
6.
On 5 March 2015, the department notified you of a charges decision, after considering
your submission. The department decided not to reduce the amount of the charge that
was notified to you on the following basis:
 The department did not consider that the documents within the scope of your
request should be available through the department’s IPS, because they are not
relied on to make administrative decisions and consequently do not affect
members of the public; and
 The department was also satisfied that the preliminary assessment of charges
appropriately reflected the cost of processing your request.
7.
On 9 March 2015, you requested an internal review of the department’s decision to
impose charges for FOI request 12236 in the following terms:
‘I am writing to request an internal review of Department of Human Services's
handling of my FOI request 'Operational Information - FCSO'.
The requirement for Money Order or Cheque is an unreasonable burden
===================================================
As of the date of this email, it is $10 to obtain a cheque from the Commonwealth
Bank of Australia, and $8.95 for a Money Order.
These additional expenses increase the cost and effort involved in paying for the
request. The time and effort required to obtain a Bank Cheque or Money Order in
comparison to EFT or credit card appears to be an attempt by the Department to
make it as difficult as possible for applicants to pay charges.
The Department and it's officers are be fully aware that the use of Money Orders and
Cheques is on the decline in Australia. Australia has had access to EFT since the
early 90's, and BPAY has been available in Australia since 1997.
In fact, the Department has electronic payment methods in place for clients who are
repaying monies owed to the Commonwealth.
The Freedom of Information Act 1982 (Cth) relevantly states at
s.3(4):
"The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access
to information, promptly and at the lowest reasonable cost."
4.3 of the FOI Guidelines relevantly state:
"A charge must not be used to discourage an applicant from exercising the right of
access conferred by the FOI Act."
The Department's failure to accept EFT would appear to be an attempt to discourage
applicants from excising their rights under the Freedom of Information Act. As I have
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Department of Human Services

demonstrated above, the Department already has EFT processes in place for the
payment of Suppliers and Clients of the Department.

Accordingly, as the Department will not accept EFT payments (as previously
indicated in other requests) I contend that any charge, even the lowest reasonable
charge, is inconsistent with the objectives of the FOI Act while the Department insists
on refusing to accept payments for FOI differently from payments from other clients of
the Department.’

Decision

8.  I have decided, under section 54C and subsection 29(8) of the FOI Act, to affirm the
decision to impose a charge.

9.  You are therefore liable to pay the processing charge of $24.35.

Material on which my findings of fact are based

10.  I based my findings of fact on the following material:
  the letter of the department notifying you of the preliminary assessment of the
charge, dated 16 February 2015;
  your correspondence seeking non-imposition of the charge, dated 16 Febraury
2015;
  your correspondence seeking internal review of the department's decision to
waive the preliminary assessment of the charge by dated 9 March 2015;
  the content of the documents to which you have sought access;
  the relevant provisions of the FOI Act;
  the Freedom of Information (Charges) Regulations 1982 (the Regulations); and
  the Freedom of Information Guidelines (the Guidelines) made under section 93A
of the FOI Act by the Office of the Australian Information Commissioner (the
OAIC).

Reasons for decision

Relevant FOI legislation

11.  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.

12.  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.

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Department of Human Services

13.  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

14.  On review of the documents falling within the scope of your request, I confirm that the
department’s Customer First Branch has identified four documents (totalling 46 pages)
as falling within the scope of your FOI request.

15.  I note that the preliminary estimate of the charge in the amount of $24.35 was calculated
on the basis of these documents.
Waiver or reduction of the charge

16.  I am not satisfied that the department should reduce, or waive, the charges imposed for
FOI request 12236, on the following basis:

  you have not provided sufficient evidence of financial hardship;
  the documents would not be in the general public interest to release, as they do
not assist the department to make administrative decisions and therefore do not
affect members of the public; and
  you have not put forward other relevant considerations that sufficiently weigh in
favour of reducing, or waiving, the charges.

  Financial hardship

17.  You have submitted that the additional costs associated with obtaining a cheque, or a
money order, are an unreasonable burden on the Australian public. However, I do not
consider that you have claimed that the payment of the charge, or part of it, would cause
financial hardship to you personally.

18.  The decision to reduce, or not impose a processing charge on the grounds of financial
hardship, requires consideration of the applicant's specific financial circumstances and
the amount of the estimated charge. Financial hardship must be more than an applicant
having to meet a charge from his or her own resources, and be more than an applicant
discussing the burden of charges to applicants generally, to result in a reduction or non-
imposition of a processing charge.

19.  Applicants are generally required to provide some evidence of the financial hardship,
that they personally will experience, such as receipt of a pension or income support
payment, or provide evidence of income, debts or assets. You have not provided this
evidence. Consequently, I am satisfied that payment of the charge in the amount of
$24.35 would not cause you financial hardship.

  Public interest
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Department of Human Services

20.  In making my decision, I am also required under subsection 29(5) of the Act to take into
account whether the provision of access to the documents the subject of the request is
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 document or documents in question.  This
requires me to consider the nature of the documents and the context of their release.
21.  Public interest factors in favour of reducing or waiving a charge are:
  the level of public interest in the documents;
  the general public interest in allowing access to information (including
government policy) under the FOI Act;
  the general public interest in openness of administration; and
  promoting the objects of the FOI Act, including:
o
increasing scrutiny, discussion, comment and review of Government
activities;
o
facilitating and promoting public access to information, promptly and at the
lowest reasonable cost; and
o
informing the public on matters of public importance or interest, and
assisting participation in debate or discussion.

22. I am not satisfied that you have provided me with compelling reasons in favour of
reducing, or waiving, the charges. Further, the documents do not contain administrative
information as they contain material that is related to the internal operations of the
department. Nothing in the documents requires an officer to undertake a decision, nor do
they provide a guide to making administrative decisions related to,for example, the
implementation of social security law.
23. For similar reasons, I am also satisfied that the charges imposed should not be reduced,
or wavied, because the documents promote the objects of the FOI Act (outlined in
section 3 of the FOI Act) as the documents would not provide further insight into the
administration of the programs and payments that the department delivers on behalf of
policy departments. Consequently, I do not consider that there would be a benefit
flowing to the general public, or a substantial section of the public, sufficient enough to
justify the release of the documents at a reduced or nil charge.
Other considerations

24.  In your correspondence, dated 9 March 2015, you contended the following:

  the additional costs incurred in obtaining a cheque or a money order, to pay the
charges imposed for FOI request 12236, are an unreasonable burden as the
department has not offered you an EFTPOS option and you consider that the
department is attempting to make it as difficult as possible for applicants to pay
charges; and
  the department has electronic payment methods in place for customers who are
repaying monies owed to the Commonwealth and the department not accepting
EFTPOS payments from FOI applicants is inconsistent with the objects of the FOI
Act.

25.  Nowhere in the FOI Act or the Guidelines stipulates which methods of payment must be
offered to FOI applicants. Rather, subsection 3(4) of the FOI Act states that charges
must be imposed at the lowest reasonable cost. Consequently, it is immaterial that the
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Department of Human Services

department has other payment options available to customers for alternate purposes,
principal y the department’s service delivery operations. EFPTOS transactions are
offered to customers in relation to the administration of social security, medicare-related
and child support payments. This is the department’s primary service delivery function.
Charges imposed for FOI requests contribute to the department processing FOI requests
for non-personal information, which is ancil ary to the department’s service delivery
operations.

26.  Based on the department’s current FOI procedures, which employ a consistent method
for calculating the charges associated with non-personal FOI requests and offer
consistent methods of payment of these charges, the method of calculating the charges
for FOI request 12236 has fairly and accurately reflected the amount of work involved in
processing your request for non-personal information.

27.  In deciding whether charges should be reduced or waived, I have also taken into
consideration:
  the cost to the department, including staff and other resources, in processing the
FOI request; and
  the impact of diverting staff resources to process the FOI request on the
department's other operations at a time when the department is under significant
pressure to deliver the Government's priorities and programs.

28.  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.

29.  In the letter dated 5 March 2015, the department indicated that the Charge should be
paid by cheque or money order made out to the Collector of Public Monies. These
methods are used by the FOI and Information Release Branch of the department
because it is not possible for the Collector of Public Monies to receive payments for FOI
requests electronically for this department.This is because these payments cannot be
identified as FOI charges in the context of the other monies the department collects.
Therefore, providing applicants with the abovementioned payment options is not a
mechanism used by the department to discourage an applicant from exercising the right
of access conferred by the FOI Act but simply the only feasible methods available to the
department at this time.

30.  Further, the department’s methods for paying charges associated with FOI requests are
consistent with those used by other Commonwealth agencies, such as the Australian
Federal Police’s FOI area.

31.  On this basis, I am not persuaded by your argument that requiring applicants to pay
charges by cheque or money order is contrary to the objects of the FOI Act or anything
in the Guidelines.

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Department of Human Services

Conclusion

32.  For the reasons above, I consider that the charges imposed for FOI Request 12236
should remain at $24.35 and no reduction or waiver.

33.  No further action on the request will be undertaken until the charges imposed for FOI
request 12236 have been received by the department. After this has occurred, the
department will be in a position to continue processing your FOI request.

Appeal Rights and further contact

34.  If you do not agree with my decision, you may apply to the Information Commissioner for
a review of the decision. I have attached an information sheet that explains your rights of
review under the FOI Act (see Attachment A).

35.  If you have any questions about this internal review decision, or wish to discuss, please
contact xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx, citing LEX 12669.

Yours sincerely

FOI Delegate
FOI and Information Release Branch
Department of Human Services
Email: xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx

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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).

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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
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Department of Human Services