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From:
TGA FOI
To:
s22
Cc:
TGA FOI
Subject:
RE: FOI 5348 - Notice of Estimate of Charges [SEC=OFFICIAL]
Date:
Tuesday, 24 September 2024 1:30:56 PM
Attachments:
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Dear s22
 
I refer to previous correspondence regarding your FOI request 5348.
 
I write to advise that the decision maker has decided not to impose charges for the processing of
your FOI request.  
 
As notified in the Estimate of Charges letter sent to you on 28 August 2024, the processing
timeframe was suspended under section 31(2)(a) between the time the charges were issued and
receipt of a deposit/decision on the waiver or reduction of fees. Accordingly, as the charges for
processing your request are not being imposed, the processing of your request has
recommenced.
 
As your request relates to the personal, professional, business, commercial or financial affairs of
third parties, pursuant to section 27 and 27A of the FOI Act, the TGA is required to consult with
the affected third parties and provide them an opportunity to make submissions regarding the
release of the documents.
 
Accordingly, under section 15(6) of the FOI Act the timeframe for processing your request has
been extended by 30 days to allow the consultation process to be conducted.
 
The current due date for a decision in relation to your request is 12 November 2024.
 
If you have any questions or concerns, please don’t hesitate to contact the FOI team.
 
Kind regards
s22
 
Freedom of Information
Therapeutic Goods Administration
Australian Government Department of Health and Aged Care
T: 02 6289 4630 | E: xxxxxx@xxxxxx.xxx.xx
PO Box 100, Woden ACT 2606, Australia
Web: www.tga.gov.au
 
Important: This transmission is intended only for the use of the addressee and may contain confidential or
legally privileged information. If you are not the intended recipient, you are notified that any use or
dissemination of this communication is strictly prohibited. If you receive this transmission in error please notify
the author immediately and delete all copies of this transmission.
 
The Department of Health acknowledges the Traditional Custodians of Australia and their continued connection
to land, sea and community. We pay our respects to all Elders past and present. 
 
 
-----Original Message-----
From: s22
 
Sent: Thursday, August 29, 2024 7:01 PM
To: TGA FOI <xxxxxx@xxxxxx.xxx.xx>
Subject: Re: FOI 5348 - Notice of Estimate of Charges [SEC=OFFICIAL]
 
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Dear Freedom of Information Team,
 
I wish to contend that the charge has been wrongly assessed. My reasons are as follows.
 
In Emmanuel Freudenthal and Department of Foreign Affairs and Trade (Freedom of
information) [2019] AICmr 15, the Information Commissioner stated at [46]:
“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, she states:
“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] AICmr 57 (ABX).
In ABX, the applicant sought IC review of a decision of the Department of Veterans' Affairs (DVA)
to impose a charge of $403.45 to process an FOI request. ABX considers whether a charge
should be imposed where the cost to the Commonwealth of assessing, imposing and collecting
the charge from the applicant might exceed the cost to DVA of processing the applicant's
request (or the amount of the charge itself).
The FOI Commissioner explained at [3]:
“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 at [45]:
“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.”
The FOI Commissioner accepted that, in the circumstances of the matter before him, the cost of
calculating and collecting a charge might exceed the amount of the charge itself. He noted that
the object set out in s 3(4) is not limited to the provision of access at the lowest reasonable cost,
but also expresses a parliamentary intention that functions and powers under the FOI Act must
be performed and exercised to facilitate and promote the prompt public access to information.
The FOI Commissioner was satisfied that having regard to these considerations, and the public
resource already applied in relation to the matter, warranted a decision that no charge be
applied in the circumstances.
 
I also wish to bring to your attention recent IC Review decisions regarding whether a charge has
been wrongly assessed.
 
In Paul Farrell and Services Australia (Freedom of information) [2023] AICmr 27 (Paul Farrell and
Services Australia), the Department determined that the applicant is liable to pay a charge of
$342.10 for processing the request. Services Australia submitted that ABX was inconsistent with
the FOI Guidelines and previous decisions. The Information Commissioner extensively disputed
the Department's submissions and addressed the implications of ABX at [35]-[45].
In this IC Review, the applicant had already made a deposit to progress the processing of their
FOI request. As the bulk of the cost necessary to administer the charge had already been utilised
and spent, this decision under review differs slightly. The Information Commissioner stated at
[48]:
“This is notwithstanding that, in my view, a decision not to impose any charge would have been
open, and probably would also have been the preferable decision to make, under s 29(4) had
Services Australia approached the decision-making process differently.”
 
In CropLife Australia and Department of Agriculture, Fisheries and Forestry (Freedom of
information) [2024] AICmr 159, the Department determined that the applicant is liable to pay a
charge of $710 for processing the request.
The Assistant Commissioner, Freedom of Information, stated at [25]:
“I also note that in this case, there is a real possibility that the cost of calculating and collecting a
charge might exceed the cost to the agency of processing the request, which would militate in
favour of the waiver of the charge. As noted in ABX, in such circumstances, proceeding with a
charge would likely only serve to delay access at a net financial cost to the Commonwealth.”
 
Given the extensive case law established by these recent decisions, I strongly urge you to
reconsider whether your charge of $130.28 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 mine: $291.68 in ABX,
$342.10 in Paul Farrell and Services Australia, and $710 in CropLife Australia. 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.
 
Yours sincerely,
 
s22
 
-----Original Message-----
 
Dear s22
 
 
 
Please find attached correspondence in relation to your Freedom of  Information request.
 
 
 
IMPORTANT: Please include reference to FOI 5348 in your payment.
 
 
 
The decision maker is yet to make a decision on your request.
 
 
 
Should you wish to proceed with your request, you will note from the  attached letter that you
are required to pay a deposit before the request  can be processed. If you do not pay the deposit
within 30 days, your  request will be treated as withdrawn.
 
 
 
Consultation
 
As your request relates to the personal, professional, business,  commercial or financial affairs of
third parties, pursuant to section 27  and 27A of the FOI Act, the TGA is required to consult with
the affected  third parties and provide them an opportunity to make submissions  regarding the
release of the documents.
 
 
 
Accordingly, under section 15(6) of the FOI Act, and upon payment of a  deposit, the timeframe
for processing your request will be extended by 30  days to allow the consultation process to be
conducted.
 
 
 
If you have any questions, please do not hesitate to contact the FOI Team.
 
 
 
Kind regards,
 
Freedom of Information
 
Therapeutic Goods Administration
 
Australian Government Department of Health and Aged Care
 
T: 02 6289 4630 | E: [1][email address]
 
PO Box 100, Woden ACT 2606, Australia
 
Web: [2]www.tga.gov.au
 
 
 
Important: This transmission is intended only for the use of the addressee  and may contain
confidential or legally privileged information. If you are  not the intended recipient, you are
notified that any use or dissemination  of this communication is strictly prohibited. If you receive
this  transmission in error please notify the author immediately and delete all  copies of this
transmission.
 
 
 
The Department of Health acknowledges the Traditional Custodians of  Australia and their
continued connection to land, sea and community. We pay our respects to all Elders past and
present.
 
 
 
 
 
 
 
"Important: This transmission is intended only for the use of the  addressee and may contain
confidential or legally privileged information.  If you are not the intended recipient, you are
notified that any use or dissemination of this communication is strictly prohibited.  If you  receive
this transmission in error please notify the author immediately and delete all copies of this
transmission."
 
References
 
Visible links
1. mailto:[email address]
2. http://www.tga.gov.au/
 
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