Reference:
FOI 22/85 IR
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
C Drake
Right to Know
By email only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Drake
Freedom of Information Internal Review of Charges Request – FOI 22/85
On 24 September 2022, the Department of Finance (Finance) received your email in which
you sought access under the Commonwealth
Freedom of Information Act 1982 (FOI Act) to
documents held by Finance. A copy of your request is at
Attachment A.
Initial Charges Estimate
On 10 October 2022, Finance notified you of the $164.42 preliminary assessment of the
charges payable by you for Finance to process your request, in accordance with the
Freedom
of Information (Charges) Regulations 2019 (Regulations).
Contention of the charges
On 12 October 2022, you outlined your contention of the preliminary assessment charge and
sought waiver of the charges. A copy of your contention is at
Attachment B.
Decision on waiver of charges
On 1 November 2022, Finance notified you of the decision maker’s decision to affirm the
preliminary charges assessment of $164.42. A copy of this decision is at
Attachment C.
Internal review request
On 13 November 2022, Finance received your email, in which you sought an internal review
of Finance’s decision of the charges payable by you for Finance to process your request on
the basis of the following:
I request a review of the decision to charge fees for my FoI request on the following grounds:-
1. This topic is a matter of public debate (including multiple published refused FoI requests on the
"righttoknow" website).
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
2. My request relates to the topic of "agency decision making", in particular, its disingenuous behavior in
respect to denying FoI request for public-interest information (government web sites) by using:
a) multiple inappropriate means (including deliberately misrepresenting legal status), and
b) multiple different and changing excuses, and
c) by making outgoing requests to formerly agreeable stakeholders in order to change their support, and
d) obsequiously pretending you cannot "identify" me (the person who made the FoI request) for the
purposes of working out what documents relate to me in the context of those generated by your officers
during their contact with the third parties involved in my FoI request, and seeking to change their support
of my request.
3. My request specifically seeks to reveal to the public as to why or how the previous refusal decision was
made, including highlighting any problems or flaws that occurred in the decision making process:
specifically - the fact that your department is using an external third party to perform the duties of your
department (maintain the list of government domains) and you are using the fact that this third party is
performing your department duties as an excuse to deny FoI access by pretending that confidentiality
documents between your department and this entity apply to the information which your department
administers in such as way as to prevent its release to the public.
The public deserve to know the tricks your department uses to avoid scrutiny, so we can take appropriate
steps to restore our right to know what you're doing.
4. My request satisfies practically all of section 4.190 (including proposed legislation, public debate,
inquiry submission, and so forth).
5. Your department has made the advanced decision NOT to release one or more items in my request,
including the one you know for certain that I most want to receive (the domain list), and has nevertheless
decided to levy a fee knowing full-well in advance that you will not be providing me with access to the
document even if/when I pay this fee. Charging for an item that you have no intent to release is fraud.
6. I have zero confidence that you have any genuine intent to release any of the controversial documents or
other records (most likely phone recordings, since telephone seems a likely means used in this instance to
avoid leaving records) that were used to convince the third party to change their tune from "happy to let
me have the list" to "object" and/or have been used to threaten the third party into not allowing my access
to them. Again - this FoI request relates to misbehavior of your own staff in carrying out their FoI
obligations to the public: charging me for items which you know in advance you will not be releasing is
fraudulent.
7. I was extremally disappointed that my review of my first request for this domain list upheld the refusal,
especially since it's such an absurd idea that a department can simply draft a contract to make government
data "confidential" and then use that to deny an FoI request.
It makes it clear that the officer who processed my review is sympathetic to the officer who refused my
request, and was not acting impartially, nor in the best interests of the public or the spirit of the FoI act.
Accordingly, I request that this, my request for another review, be carried out by a different representative
who has not previously refused (or withheld a refusal) my access to department records, and one who will
act in the interest of the public, the spirit of the FoI, and without sympathy or allegiance to the former FoI
officers involved in this dispute.
On 14 November 2022, Finance emailed you to confirm which decision your internal review
request related.
On 15 November 2022, Finance received your email, in which you confirmed that you
sought an internal review on the charges decision on the basis of the following:
I seek an internal review of the FOI 22/85 charges decision on the grounds that fees should not be charged
in this case for multiple reasons, including (but not limited to) the overwhelming applicability of section
4.109 for (at least) the reasons I identified in my previous email and below.
2
Be aware that I've filed another FoI for the same original content (list of domains) making clear that I don't
care what source you acquire the list from (since your original rejection was obsequiously based on
confidentiality with 3rd parties). I'm willing to drop this review request and FOI 22/85 if you supply the
list (I don't want to waste your time or appear vexatious - I just want the domain list which was (at least
for a decade or more) published in full in the past: I have no idea why you're fighting so hard to block this
formerly-available information from being made available once again).
I strongly recommend you carefully read my new request and the reasons for wanting access to this
information, reasons which I hereby incorporate by reference into this review:
https://www.righttoknow.org.au/request/what_are_all_our_govau_domains
The purpose of this letter is to provide you with notice of my internal review decision under
the FOI Act.
Authorised decision-maker
I am authorised under subsection 23(1) of the FOI Act to make decisions in relation to FOI
requests, including requests for internal review.
Internal Review Decision
Consideration of contention
I have considered your request on its merits. In accordance with section 29 of the FOI Act, I
have decided not to waive or reduce the charge of $164.42.
In making my decision I have had regard to the following:
• the content of the documents that would fall within the scope of your request;
• the original charges decision;
• the content of your email requesting internal review of the imposition of the charge;
• the relevant provisions of the FOI Act and the FOI Charges Regulations;
• relevant FOI case law (referenced throughout the original decision); and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
I acknowledge that one of the principal objects of the FOI Act is to facilitate and promote
the disclosure of information held by government. However, the FOI Act does not go so far
as to say that access to information should be free of any cost to the applicant.
In considering your application, I have also referenced the FOI Guidelines in Part 4,
section 4.3:
An agency or minister has discretion to impose or not impose a charge, or impose a charge that is lower
than the applicable charge under Regulation 3 of the Charges Regulations. In exercising that discretion the
agency or minister should take account of the ‘lowest reasonable cost’ objective, stated in the objects
clause of the FOI Act at section 3(4):
… 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.
3
I also considered the following principle at paragraph 4.5 of the Guidelines which is relevant
to charges under the FOI Act:
Charges should fairly reflect the work involved in providing access to documents on request
The power to reduce or waive FOI charges is a discretionary one, subject to law and
government policy.
Subsection 29(5) of the FOI Act 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.
I have considered subsection 29(5) of the FOI Act, the FOI Guidelines, your reasons for the
internal review, together with the reasons set out in Finance’s Charges decision letter under
the headings of ‘Calculation of charge amount’, ‘Financial hardship’, ‘Public Interest’ and
‘Improper behaviour’ from pages 2 to 4.
In particular, you stated:
I seek an internal review of the FOI 22/85 charges decision on the grounds that fees should not be charged
in this case for multiple reasons, including (but not limited to) the overwhelming applicability of section
4.109 for (at least) the reasons I identified in my previous email and below.
My findings of fact and reasons for deciding not to waive or reduce the charge are set out
below.
Public Interest
Paragraph 29(5)(b) of the FOI Act requires me to consider ‘whether the giving of access to
the documents in question is in the general public interest or in the interest of a substantial
section of the public’.
The FOI Guidelines at paragraph 4.109 has a non-exhaustive list of factors that may
constitute ‘public interest’ for the purposes of charging under the FOI Act.
I consider that Finance’s Charges decision letter, under the heading of ‘Public Interest’ on
page 4 addresses your above statement. That is, the documents relate to the standard
contractual provisions in relation to the provision of services for the administration of .au
and the .gov.au domain name registry, together with the standard steps required to be
undertaken by Finance to consult with third parties.
As such, I do not consider that the documents that you have requested relate to a matter of
public debate, or to a policy issue under discussion, or that disclosure would assist the public
to comment on, or participate in, the debate or discussion.
Improper behaviour
In your request for internal review email sent on 13 November 2022, you stated:
5. Your department has made the advanced decision NOT to release one or more items in my request,
including the one you know for certain that I most want to receive (the domain list), and has nevertheless
decided to levy a fee knowing full-well in advance that you will not be providing me with access to the
document even if/when I pay this fee. Charging for an item that you have no intent to release is fraud.
4
I have reviewed the charges documents and consider that the estimate of 13.5 hours of work,
and the associated charges of $164.42 is a reasonable estimate of the time required to
process your request. I do not consider that the issuing of a charge reveals any improper
behaviour of FOI Officers’, or any government employee. Finance’s employees, in response
to receiving your FOI request (FOI 22/85) conducted themselves at all times in accordance
with their obligations under the APS Code of Conduct.
I consider that if documents existed that would reveal improper behaviour of government
employees, then those documents would be relevant to the public interest considerations for
the purposes of charging under the FOI Act, but this is not the case.
Conclusion
Based upon the above, I am therefore satisfied that the charge of $164.42 should
not be waived nor reduced on public interest grounds.
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.
Next steps
Timeframe
We ask that within 60 days of the date of receipt of this notice, you either:
• agree to pay the charge of $164.42; or
• seek an external review of charges decision by the Australian Information
Commissioner (IC), or
• withdraw your request.
Notice must be provided to Finance in writing. If you fail to notify Finance in a manner
described above within 60 days of the date on this notice, being on or before
Friday 10
February 2023, it will be taken that you have withdrawn your request.
The time period for processing your request remains suspended from the date of this notice
and resumes on either the day you pay the charges amount or the day on which Finance
makes a decision not to impose a charge. However, the actual processing time would also be
affected by third party consultation.
Payment of charges
You can agree to pay the charge. If you agree, processing of your request will resume as
soon as Finance receives payment.
Payment is $164.42. Payment entitles you to receive a decision in relation to your request, a
schedule (if there are more than 3 documents) which lists the documents relevant to your
request, and any documents released.
If you agree to pay the charge please notify the FOI team and they will prepare an invoice
for you to complete, sign and return.
5
Review and appeal rights
You are entitled to request an external review by the Office of the Australian Information
Commissioner (OAIC) of my decision. The process for review and your appeal rights are set
out at
Attachment D.
Yours sincerely,
12/12/2022
X
Signed by: Gabriel, Marcel
Marcel Gabriel
Assistant Secretary
Government Services Branch | Information and Communications Technology Division
Department of Finance
13 December 2022
6
ATTACHMENT D
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. There are two
ways you can seek a review of our decision: an internal review (IR) by Finance or the
Minister, or an external review (ER) by the Australian Information Commissioner (IC).
Internal Review (IR)
Third parties
If, Finance or the Minister (we/our), makes a
If you are a third party objecting to a decision
Freedom of Information (FOI) decision that
to grant someone else access to your
you disagree with, you can seek a review of
information, you must apply to the IC within
the original decision. The review will carried
30 calendar days of being notified of our
out by a different decision maker, usually
decision to release your information.
someone at a more senior level.
Further assistance is located
here.
You must apply for an IR within 30 calendar
Do I have to go through the internal
days of being notified of the decision or
review process?
charge, unless we agree to extend your time.
No. You may apply directly to the OAIC for
You should contact us if you wish to seek an
an ER by the IC.
extension.
We are required to make an IR decision
If I apply for an internal review, do I
within 30 calendar days of receiving your
lose the opportunity to apply for an
application. If we do not make an IR decision
external review?
within this timeframe, then the original
No. You have the same ER rights of our IR
decision stands.
decision as you do with our original decision.
This means you can apply for an ER of the
Review by the Australian
original decision or of the IR decision.
Information Commissioner (IC)
Do I have to pay for an internal review
The Office of the Australian Information
or external review?
Commissioner (OAIC) is an independent
office who can undertake an ER of our
No. Both the IR and ER are free.
decision under the FOI Act. The IC can
review access refusal decisions, access grant
decisions, refusals to extend the period for
applying for an IR, and IR decisions.
If you are objecting to a decision to refuse
access to a document, impose a charge, or a
refusal to amend personal information, you
must apply in writing to the IC within 60
calendar days of receiving our decision.
7
How do I apply?
Can I appeal the Information
Commissioner’s external review
Internal review
decision?
To apply for an IR of the decision of either
Yes. You can appeal the Information
Finance or the Minister, you must send your
Commissioner’s ER decision to the
review in writing. We both use the same
Administrative Appeals Tribunal (AAT).
contact details, and you must send your
review request in writing.
There is a fee for lodging an AAT application
(as at 19 October 2022 it is $1,011).
In your written correspondence, please
include the following:
Further information is accessibl
e here.
• a statement that you are seeking a review
The AAT’s number is 1800 228 333.
of our decision;
• attach a copy of the decision you are
Complaints
seeking a review of; and
• state the reasons why you consider the
Making a complaint to the Office of the
original decision maker made the wrong
Australian Information Commissioner
decision.
You may make a written complaint to the
Email: xxx@xxxxxxx.xxx.xx
OAIC about actions taken by us in relation to
your application.
Post: The FOI Coordinator
Legal and Assurance Branch
Further information on lodging a complaint is
Department of Finance
accessibl
e here.
One Canberra Avenue
FORREST ACT 2603
Investigation by the Commonwealth
Ombudsman
External review (Information
The Ombudsman can also investigate
Commissioner Review)
complaints about action taken by agencies
For an ER, you must apply to the OAIC in
under the FOI Act. However, if the issue
writing. The OAIC ask that you commence a
complained about either could be, or has been,
review by completing their online form
here.
investigated by the IC, the Ombudsman will
consult with the IC to avoid the same matter
Your application must include a copy of the
being investigated twice. If the Ombudsman
notice of our decision that you are objecting
decides not to investigate the complaint, then
to, and your contact details. You should also
they are to transfer all relevant documents and
set out why you are objecting to the decision.
information to the IC.
Email: xxxxx@xxxx.xxx.xx
The IC can also transfer a complaint to the
Ombudsman where appropriate. This could
Post: Office of the Australian Information
occur where the FOI complaint is only one
Commissioner
part of a wider grievance about an agency’s
GPO Box 5218
actions. You will be notified in writing if your
Sydney NSW 2001
complaint is transferred.
The IC’s enquiries phone line is
Complaints to the Ombudsman should be
1300 363 992.
made online
here.
The Ombudsman’s number is 1300 362 072.
8
Document Outline
