Ref: LEX – IR 78014
Ash Roth
Via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ash Roth
Your Freedom of Information request – Internal review of charges decision
I refer to your internal review request received by the Department of Climate Change, Energy,
the Environment and Water (
department) on 24 October 2024 of a charges decision previously
issued to you on 16 October 2024.
The charges decision relates to your request for access under the
Freedom of Information Act
1982 (Cth) (
FOI Act), received by the department on 25 August 2024, to the following
documents:
‘I am seeking copies of correspondence between the Department and The Australia
Institute, and the Department and Greenpeace, on the topic of the reforms of the EPBC
Act / the Nature Positive reforms, from 1 January 2024 onwards.’
My decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to
waive the charge of $221.83.
The reasons for my decision, including the relevant sections of the FOI Act, are set out in
Attachment A.
Time periods of processing your request
Section 31 of the FOI Act provides that where a notice is sent to an applicant regarding the
payment of a charge in respect of a request, the time limit for processing the request is
suspended from the date the applicant was notified of the charge until:
• the day after the charge (or deposit) is paid; or
• if applicable, where a subsequent review decision has been provided, the day after:
o a charge or deposit has been paid; or
o the applicant is notified of a decision to not impose the charge.
As I have decided to waive the charge, a decision is now due to you by 30 December 2024.
T +61 2 6274 1111
John Gorton Building
GPO Box 3090
dcceew.gov.au
F +61 2 9094 2221
King Edward Terrace
Canberra ACT 2601
ABN 63 573 932 849
Parkes ACT 2600
You can ask for a review of my decision
You may apply to the Office of the Australian Information Commissioner (
OAIC) to review my
decision. An application for review by the Information Commissioner must be made in writing
within
60 days after the day you are notified of this decision. You can also make a complaint to
the Information Commissioner if you have concerns about how the department handled your
request.
You can find information about requesting a review, making a complaint, and other information
about FOI on the OAIC websi
te www.oaic.gov.au or phone the OAIC on 1300 363 992.
You can also make a complaint to the Commonwealth Ombudsman if you have concerns about
how the department handled a request for documents under the FOI Act, or took any other
action under the FOI Act. There is no fee for making a complaint to the Commonwealth
Ombudsman.
Information about making a complaint to the Commonwealth Ombudsman is available in its
website www.ombudsman.gov.au or phone the Ombudsman on 1300 362 072.
Further assistance
If you have any questions, please emai
l xxx@xxxxxx.xxx.xx.
Yours sincerely
James Tregurtha
Division Head
Nature Positive Taskforce Division
20 November 2024
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Attachment A
REASONS FOR DECISION
What you requested
‘I am seeking copies of correspondence between the Department and The Australia
Institute, and the Department and Greenpeace, on the topic of the reforms of the EPBC
Act / the Nature Positive reforms, from 1 January 2024 onwards’
What I took into account
In reaching my decision, I took into account:
• your original request dated 25 August 2024;
• the preliminary assessment of charges dated 13 September 2024;
• the contention of charges dated 16 September 2024;
• the charges decision dated 16 October 2024;
• your internal review of charges request dated 24 October 2024;
• the documents that fall within the scope of your request;
• consultations with departmental officers about:
o the nature of the documents; and
o the department’s operating environment and functions;
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines);
• the
Freedom of Information (Charges) Regulations 2019 (
Regulations); and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to
waive the charge of
$221.83. My findings of fact and reasons for this decision
are discussed below.
Preliminary assessment of charge
On 13 September 2024, the department wrote to you to advise you that you were liable for a
charge of $221.83 for processing your request.
The preliminary assessment of that charge was calculated as follows:
T +61 2 6274 1111
John Gorton Building
GPO Box 3090
dcceew.gov.au
F +61 2 9094 2221
King Edward Terrace
Canberra ACT 2601
ABN 63 573 932 849
Parkes ACT 2600
Search and retrieval time: 10 hours at $15.00 per hour
$150.00
Decision-making time: $20.00 per hour
Examining pages, redacting and scheduling documents
$71.83
Consultation with one third-party at 2 hours per party
$40.00
Writing statement of reasons
$60.00
Deduction of 5 hours decision-making time*
-$100.00
TOTAL
$221.83
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
Charges decision
On 16 October 2024, the department wrote to you to advise that a decision had been made to
affirm the charge of $221.83 for processing your request.
Your contentions
On 16 September 2024, you requested a waiver of the charge for processing your request under
the FOI Act, on the grounds that the charge had been incorrectly assessed. Specifically, your
correspondence stated:
‘I object to the charges proposed.
The Department has identified 30 documents totalling 65 pages with one external party
(an average of less than three pages per document). Given the documents involve a
public not-for-profit third-party, in no way are they conceivably going to be classified or
sensitive documents that require specialist consideration and processing. It is excessive
to claim over 18 hours of work is required to process this handful of documents.
The Department is required under the Act to provide information at the "lowest
reasonable cost". It is not reasonable to take over 18 hours (or two and a half full days of
work) to consider 65 pages.
I ask that this cost is reconsidered, and the documents provided at nil cost given the low
volume of documents identified and the likely non-classified nature of the documents.’
On 24 October 2024, you submitted an internal review request of the charges decision issued to
you on 16 October 2024, requesting again that the charges be waived. Specifically, your
correspondence stated:
‘In Emmanuel Freudenthal and Department of Foreign Affairs and Trade (Freedom of
information) [2019] , the Information Commissioner stated:
“The FOI Guidelines explain that the ‘lowest reasonable cost’ objective should be
interpreted broadly in imposing any charges under the FOI Act and that where the cost
of calculating and collecting a charge might exceed the cost to the agency to process the
request, it would generally be more appropriate not to impose a charge.”
Furthermore, the Commissioner stated:
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“In assessing the costs of calculating and collecting a charge, agencies should also take
into account the likely costs that may be incurred by the agency, as well as other review
bodies, if the applicant decides to seek further review.”
These principles regarding cost assessment are further elaborated upon in subsequent
decisions.
The legislative framework for charges and related aspects of the FOI Guidelines is
discussed at length in the decision of 'ABX' and Department of Veterans' Affairs
(Freedom of information) [2022].
In that decision, the FOI Commissioner explained:
“As a general rule, a charge should not be imposed in circumstances where the cost of
assessing, imposing and collecting a charge is likely to be greater than the charge itself.
In those circumstances, imposing a charge will generally only serve to delay or
discourage access while incurring a net cost to the Commonwealth.”
In determining whether a charge should be imposed, the FOI Commissioner stated:
“Even if a charge could have been correctly imposed by reference to an actual cost of
$291.68, the Department should have considered at the outset whether it was preferable
to decide that the applicant was liable to pay a charge at all. The amount of that charge
should have raised an obvious question in the minds of those considering its imposition
– would it cost the Commonwealth an amount greater than the charge itself to assess and
notify the charge, provide the applicant with procedural fairness, and collect the charge?
The likely answer to that question would have been ‘yes’. In those circumstances,
proceeding with a charge would likely only serve to delay access at a net financial cost to
the Commonwealth. While the FOI Act and Charges Regulations would not, by their
terms, have prevented the Department from deciding the applicant was liable to pay a
charge, the preferable decision would have been to decide that the applicant was not
liable to pay a charge.”
I also wish to bring to your attention recent IC Review decisions regarding whether a
charge has been wrongly assessed.
This includes Paul Farrell and Services Australia (Freedom of information) [2023] , and
CropLife Australia and Department of Agriculture, Fisheries and Forestry (Freedom of
information) [2024] .
Given the extensive case law established by these recent decisions, I strongly urge you to
reconsider whether your charge might incur a net financial cost to the Commonwealth.
The Information Commissioner has consistently demonstrated a preference for waiving
charges when their collection costs could potentially outweigh the processing costs,
particularly in cases where the charges were significantly higher than in this case. I
believe the same logic applies in this instance, and waiving the charge would align with
the principles of fairness, efficiency, and promoting prompt public access to information.’
Financial hardship
Under section 29(5)(a) of the FOI Act, I am required to consider whether payment of the charge
would cause financial hardship to you.
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Paragraph 4.101 of the Guidelines relevantly provides:
Financial hardship exists when payment of the debt would leave you unable to provide
food, accommodation, clothing, medical treatment, education or other necessities for
yourself and your family, or other people for whom you are responsible.
The Guidelines further provide that an applicant relying on the grounds of financial hardship
would ordinarily be expected to provide some evidence of financial hardship, such as receipt of
an income support payment or evidence of income, debts or assets. In this regard, I note that you
have not provided evidence to support a claim regarding financial hardship.
As you have not provided evidence in relation to your financial status, I am not satisfied that the
payment of the charge would cause financial hardship to you.
Public interest
Under section 29(5)(b) of the FOI Act, I am required to consider whether giving access to the
documents would be in the general public interest or the interest of a substantial section of the
public.
Paragraph 4.107 of the Guidelines relevantly provides:
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 this disclosure. This may
require consideration both of the content of the documents requested and the context in
which their public release would occur. Matters to be considered include whether the
information in the documents is already publicly available, the nature and currency of
the topic of the public interest to which the documents relate, and the way in which a
public benefit may flow from the release of the documents.
Paragraph 4.108 of the Guidelines further provides:
There is no presumption that the public interest test is satisfied by reason only that the
applicant is a Member of Parliament, a journalist or a community or non-profit
organisation. The Guidelines further provide that it is necessary to go beyond the status
of the applicant and to look at other circumstances.
I have noted your submissions and considered the objects of the FOI Act. I am satisfied that it
would be in the public interest to waive the charge to process your FOI request.
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