If not delivered return to PO Box 7788 Canberra BC ACT 2610
15 April 2015
Mr Ben Fairless
Our reference:
LEX 12814
By email:
foi+request-897-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Fairless
Freedom of Information Request: LEX 12814 – Notice of Internal Review Decision on
Charges
1. I refer to your correspondence, dated 16 March 2015 and received by the Department of
Human Services (the
department) on the same date, in which you requested an internal
review of the department's decision not to waive, or reduce, the processing charge for
your FOI request LEX 12159.
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 12159.
Background
3. On 30 January 2015, you requested access under the FOI Act to the following
documents:
‘…a copy of all current policies and guidelines issues regarding the use of
SecureMail.
…
a copy of any guide issued by the Department to it’s officers in the use of
SecureMail.’
4. On 24 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 three
documents (totalling 18 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 $16.05 for the processing your FOI request.
5. On 25 February 2015, you wrote to the department by email, seeking that the charge,
calculated pursuant to subparagraph 29(1)(f)(ii) of the FOI Act, not be imposed as you
contended that:
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ME_112115079_1 (W2007)
the information should be released under the department’s Information
Publication Scheme (the
IPS); and
if the information is not released under the IPS, the charge should not be
imposed as the method of payment offered is inconsistent with the objectives
and spirit of the FOI Act.
6. On 16 March 2015, the department notified you of a charges decision, after considering
your submissions. 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;
the department was not persuaded by your argument that the methods of
available to you, to pay the charges imposed for FOI request 12159, were
inconsistent with the objectives of the FOI Act; and
the department was also satisfied that the preliminary assessment of charges
appropriately reflected the cost of processing your request.
7. On 16 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 'Polices about the use of "SecureMail"'.
Firstly, I disagree with paragraphs 21-23 of the decision letter.
The Department contends that the documents "are not relied on to make
administrative decisions and on that basis they do not affect members of the public."
But the decision to use this method of communication, for example in relation to the
Right to Know website, does affect members of the public (who, for example, may
wish to see how the Department is responding to FOI requests). These guidelines
would, I presume, advise officers on appropriate times to use the service (and
potentially appropriate times not to use the service). These would therefore affect the
judgement of an officer in using the service, and would be useful to determine if
officers of the Department have failed to comply with Departmental Guidelines.
Further, I disagree with the statements made in paragraph 24 to 26 of the letter
issued by the Department.
The Department says that it "indicated that the Charge should be paid by cheque or
money order made out to the Collector of Public Monies." and that it could not accept
payment for FOI charges because "these payments cannot be identified as FOI
charges in the context of the other monies the department collects".
In case the Department was not aware, BPay Payments can be made with a unique
reference number, as can payments made via EFT. Furthermore, if I was to send a
cheque to the Department, it would have to deposit that cheque into a Bank Account
(I would not be issuing a cheque that could be cashed into cash).
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Department of Human Services
If the Department is going to deposit my cheque into a bank account, why can I not
directly pay into the bank account with a unique reference (such as the FOI
Reference number), and provide a receipt of payment. This is both cheaper for the
Department and cheaper for me.
Surely it is not outside the realm of possibility for the Department to find a payment
via a unique reference number?!
The Department allows it's clients to pay via a range of methods. I assume the
Department also pays it's contractors via EFT. The arguments raised by the
Department do not correspond to the technical features provided by EFT or BPAY to
ensure that payments can be allocated against. I have yet to encounter an agency
that refuses to accept payment via EFT (even the Department of Immigration found
the means after a request on Right to Know - See
https://www.righttoknow.org.au/request/foi_request_for_detail_incident_153#incomin
g-1890 for details).
It is for the above reasons (and my earlier submission to the charges notification) that
I contend that the charges should be reduced or not imposed.’
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 $16.05
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, in relation to FOI request 12159, dated 24 February 2015;
your correspondence seeking non-imposition of the charge, dated 25 Febraury
2015;
the department’s decision to impose the preliminary assessment of the charge, in
relation to FOI request 12159, dated 16 February 2015;
your correspondence seeking an internal review of the department's decision to
impose the preliminary assessment of the charge, dated 16 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
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Department of Human Services
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.
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 Cyber Security Branch has identified three documents (totalling 18 pages)
as falling within the scope of your FOI request.
15. I note that the preliminary estimate of the charge in the amount of $16.05 was calculated
on the basis of the search and retrieval time involved for these 18 pages (estimated at
1.07 hours, at $15.00 per hour), and the decision-making time estimated for this matter –
after the deduction of 5 hours (4.79 hours at $20.00 per hour).
16. Based on the documents that the department has in its possession, in relation to your
FOI request, I am satisfied that these estimates of the search and retrieval time, and
decision-making time, accurately reflect the work involved in processing it.
Waiver or reduction of the charge
17. I am not satisfied that the department should reduce, or waive, the charges imposed for
FOI request 12159, 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
18. In your correspondence, dated 25 February 2015, you submitted that the additional
costs associated with obtaining a cheque, or a money order, is an unreasonable burden
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Department of Human Services
in general terms. 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.
19. 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.
20. 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
$16.05 would not cause you financial hardship.
Public interest
21. 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.
22. 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.
23. I am not satisfied that you have provided me with compelling reasons in favour of
reducing, or waiving, the charges.
Publication of information on the department’s IPS
24. You have contended that you disagree with paragraphs 21 to 23 of the charges decision,
notified to you on 16 March 2015.
25. The documents do not contain administrative information as they contain material that is
related to the department’s policies and guides on the use of SecureMail. The
department’s use of Secure Mail facilities is separate to administrative decision-making.
The material does not provide further insight into the department’s primary service
delivery functions or powers, nor does it shed light on administrative decisions or
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Department of Human Services
recommendations affecting members of the public. Therefore, I am satisfied that the
documents, within scope, do not satisfy the requirements of operational information for
the purposes of subsection 8A(1) of the FOI Act.
26. I note that you have referred to the Guidelines, which provide that information should be
released under the IPS if it is “the agency’s operational information, which is information
that assists the agency to exercise its functions or powers in making decisions or
recommendations that affect members of the public. This includes the agency's rules,
guidelines, practices and precedents relating to those decisions and recommendations.”
27. I also note that paragraph 13.86 of the Guidelines provides that the publication of
operational information is important in its own right, but is necessary also to ensure that
members of the public are not disadvantaged through lack of awareness of the
information used by agencies in decision-making.
28. I am not satisfied that members of the Australian public are disadvantaged by the
release of the documents, within scope, at a charge. As detailed at paragraph 23 of the
charges decision letter, 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. Rather, the documents relate to the
department’s secure email systems used to transmit correspondence bearing Protective
Markings, as per the Australian Government’s Protective Security Policy Framework.
29. You have also stated that the department’s use of SecureMail facilities to communicate
with members of the public impedes the ability of others to see public requests for
information, and the use of SecureMail facilities is a “function in making decisions or
recommendations that affect members of the public.”
30. The department publishes operational information on its IPS. It also publishes a list of
documents released and summaries, in relation to FOI requests for non-personal
information, on the department’s FOI disclosure log. These documents are available,
upon request. Furthermore, statistical information and data can be requested by emailing
xxxxxxxxxx@xxxxxxxxxxxxx.xxx.xx.
31. Given these avenues, I am not persuaded by your argument that the department using
SecureMail to communicate with applicants making information requests, disadvantages
members of the public and therefore there is no public interest in release of the
documents.
32. Further, the department’s SecureMail facilities are predominantly used for the purposes
of internal communication and communication with other Commonwealth agencies
and/or third party organisations that are involved in Commonwealth work. While
members of the public do have a degree of interaction with the department’s SecureMail
facilities, I do not consider that this group of persons is substantial enough to satisfy the
public interest test of a benefit flowing generally to the public, or a substantial section of
the public, from the disclosure of the documents in question.
33. Similarly, I am also satisfied that the charge imposed for FOI request 12159 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.
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Department of Human Services
Other considerations
34. In your correspondence, dated 25 February 2015 and 16 March 2015, you also
contended that the charge imposed for FOI request 12159 is excessive, and should not
be imposed, for the following reasons:
the requirement for the payment of the charge by money order or cheque is an
unreasonable burden;
the department has electronic payment methods in place for customers and the
department not accepting EFTPOS/BPay payments from FOI applicants is
inconsistent with the objects of the FOI Act; and
you disagree with paragraph 24 to 26 of the charges decision, notified to you on 16
March 2015.
35. 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
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.
36. 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.
37. 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.
38. 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.
39. In the letter to you, dated 16 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. Again, this is because these payments
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Department of Human Services
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.
40. I acknowledge that other Commonwealth agencies have utilised EFTPOS and/or BPay
payment options for FOI requests. I also acknowledge that EFTPOS and/or BPAY
payment options involve the assignment of a unique reference number for particular
transfers. However, it is the department’s current policy to only offer FOI applicants the
option of paying for charges, in relation to the processing of their requests, by cheque or
money order. To do otherwise, would be in contravention of this policy.
41. I note your arguments regarding the technical advantages of using electronic payment
facilities, for the purposes of paying the charge imposed for your FOI request. However,
the majority of the FOI requests that the department receives are of a personal nature,
which we do not impose charges for. The department does not collect charges for FOI
requests frequently enough to justify the arrangement of a separate bank account for
FOI requests, or require departmental officers to separate EFTPOS/BPay transactions
for FOI. To do so, would substantially divert the department’s resources from its primary
service delivery objectives.
42. 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.
43. 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.
Conclusion
44. For the reasons above, I consider that the charges imposed for FOI Request 12159
should remain at $16.05 and no reduction or waiver will be granted to you.
45. No further action on the request will be undertaken until the charges imposed for FOI
request 12159 have been received by the department. After this has occurred, the
department will continue processing your FOI request.
Appeal Rights and further contact
46. 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).
47. If you have any questions about this internal review decision, or wish to discuss, please
contact
xxx.xxxxx.xxxx@xxxxxxxxxxxxx.xxx.xx, citing LEX 12814.
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Department of Human Services
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 section 54L of the FOI Act, you can apply for a review of this
decision by the Information Commissioner.
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:
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Department of Human Services
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
