Dear Department of Foreign Affairs and Trade,
This is an application for the document whatever the name and type, that records the details of all aspects of time spent and dollar amount attributed to dealing with FOI application LEX 2125 lodged by me on 18 June.
To make things easier in difficult times I'm happy to accept the document with the names of non SES officers redacted.
The application for the document in this form seems ideally suited to access via Administrative Access so please treat it as such.
If for some reason-please tell me-this isn't possible, it is an application under the Freedom of Information Act
Dear Mr Timmins
I refer to your email dated 7 December 2020 requesting access under the Freedom of Information Act 1982 (FOI Act) to:
“…the document whatever the name and type, that records the details of all aspects of time spent and dollar amount attributed to dealing with FOI application LEX 2125 lodged by me on 18 June."
Thank you for your patience as we have considered this matter.
As you have suggested, we propose handling this request outside the FOI Act through an administrative access arrangement.
Please be aware that one of the key differences between processing your request under the FOI Act and providing access through administrative access arrangements is that you will not be able to seek merits review of a decision to refuse access to information or documents under an administrative access arrangement. However, if you are dissatisfied with the department’s approach to administrative access, there are other avenues for you to make a complaint including through the department’s standard complaint handling processes.
The department does not hold any documents that record the time spent or dollar amount attributed to dealing with FOI application LEX 2125 lodged by you on 18 June 2020.
I trust this is of assistance.
DFAT FOI Team
Freedom of Information and Privacy Law Section
Legal Division | Department of Foreign Affairs and Trade
DFAT.GOV.AU | Twitter | Facebook | Flickr | YouTube
The resort to an 'administrative access arrangement''to inform me that you hold no record of time spent or the dollar amount attributed to dealing with FOI application LEX 2125 lodged on 18 June 2020, came as a surprise.
Surprise No 1
It was news to me that you have 'administrative access arrangements'’ in place.
I suggested in my application LEX2125 you consider such arrangements to release one named document. The suggestion was prompted by the narrow scope of the request, and the difficulties DFAT and other agencies face in coping with the Pandemic and the complexities involved in formal processing FOI applications.
I also wrote that If you couldn't deal with the application in that way that you provide reasons. If 'administrative access' was not possible or practicable, I asked that you deal with the application as an FOI request.
As you see from the correspondence that ensued 'administrative access' was not mentioned in your acknowledgement or in any subsequent correspondence from you in connection with LEX 2125.
There is no mention of 'administrative access arrangements' anywhere on the DFAT website that I can see.
Surprise No 2
I mentioned 'administrative access' in making this follow up request for a document or documents that contain factual information about hours spent in processing LEX 2125 over five months and attributing cost for the time involved.
It seemed a simple straight forward, easy to deal with request.
I added that if access in this way was not possible or practicable, it was an FOI application.
It came as a surprise that a DFAT 'administrative access arrangement' extends beyond "access" to what under FOI (Section 24A) would be a decision to refuse a request for access on grounds that
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency's or Minister's possession but cannot be found; or
(ii) does not exist.
The convenience for you of not having to detail what steps were taken to find the document (s) and provide reasons for the decision is obvious, but amounts to a stretch of the purpose and intention of administrative access promoted by the OAIC.
OAIC Guidance highlights this Key Point:
"It is open to agencies to consider administrative access as an option to release information outside of the Freedom of Information Act 1982 (FOI Act)."
There is nothing in their materials to indicate that 'administrative access' is encouraged as an alternative for any other aspect of FOI processing.
(By the way, the Guidance states "an agency or minister needs to obtain the applicant’s consent, prior to dealing with the request by way of administrative access, and confirm withdrawal of the FOI request', and "If the applicant’s consent is not obtained, the agency’s or minister’s obligation to process the FOI request remains and the relevant statutory processing period still applies.")
Surprise No 3
The really big surprise- the Department holds no record of who did what during the five months processing LEX2125, how long officers took in doing what they did, and that nothing was recorded or retained about how much was attributed as the cost of all this.
As you report to the OAIC annually on time and cost of FOI processing i was sure you would have a record of what turned out to be a long drawn out process.
You were certainly mindful of cost/charges in processing LEX 2125 on the way through:
In an email dated 24 June you informed me the Department policy is to issue charges for processing requests, a position you maintained despite the OAIC guidance I brought to your attention that an agency has a discretion on a case by case basis whether to charge or not charge.
Someone was looking at time likely involved around 7 July when you informed me that the estimated charge for time spent- in addition to five hours free of charge amounted to $108.67. No details of your assessment were provided.
Someone must have been keeping track around 11 August when in an email outlining why my argument for waiver of the full amount of charges on public interest grounds was rejected on grounds as you put it that ‘charges are a vital component of the FOI process.”
That email said the document was under consideration so the clock was ticking somewhere.
Eight years is a long time by any measure but if you don't hold any relevant record, your processes of keeping track of time and cost has changed since 2013.
Back then In a submission to the Hawke review of FOI law and implementation and when a whiff of change was in the air, but has since passed, DFAT recounted the expensive experience in dealing with FOI applications including one particular application:
"No charges were levied, as the applicant put forward a compelling argument of financial hardship. However, even if he had been charged the full amount, the charges would have been in the order of $3000. Processing his request cost the Australian community approximately $15000. Additionally, making decisions on the releasability of these twenty-year old documents diverted the senior executive responsible for managing the Government’s relationship with a key regional area for two full-time weeks so that he could make this FOI decision."
DFAT"s submission is on the AGD website
I was looking for similar information in 2021 about what my application cost in terms of hours and dollars but alas, you tell me you don't have a clue.
Where to from here?
As outlined above I could come back to you not consenting to this application being dealt with as 'administrative access' and requiring an FOI decision with all that entails.
However without withdrawing the request, let's see if administrative access arrangements extend to this and maybe close this file:
Please forward within the next seven days a copy of DFAT's 'administrative access arrangements'; the most recent administrative circular or similar document distributed to officers about recording time and charges/costs in dealing with an FOI application; and any brief comment you would like to make about why no records are held of the time and cost of dealing with LEX 2125.
Please treat my application as a Freedom of information request.
I did not consent to reliance on administrative access arrangements for any purpose other than the release of the document requested. There was no contact with me seeking consent to rely on arrangements outside the FOI act to inform me of the (surprising) finding that no relevant document is held.
In these circumstances as indicated in OAIC Guidance and Advice "the agency’s or minister’s obligation to process the FOI request remains and the relevant statutory processing period still applies."
The only response to the application lodged on 7 December is your email of 11 January by which time 30 days had passed.
As no FOI decision was made within the 30 day timeframe or has been made since, this email is an application for internal review of the deemed refusal to provide access to “…the document whatever the name and type, that records the details of all aspects of time spent and dollar amount attributed to dealing with FOI application LEX 2125 lodged by me" on 18 June.