Date: Mon, 21 Oct 2024 08:20:16 +0000
Subject: Re: Notice of charges - further clarification required – LEX 75930 [SEC=OFFICIAL]
From: CR <xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
To: Freedom of Information <
xxx@xxxxxxxx.xxx.xx>
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Dear Senior FOI Officer,
I wish to contend that the charge has been wrongly assessed and that providing access to the documents would be in the public interest. I outline my arguments below.
1. Incorrect Assessment of Time to Process the Request
You have estimated that it took 6.5 hours to retrieve the 45 documents relevant to my request. I submit that this estimate is the result of poor or inefficient record-keeping practices. According to the FOI Guidelines at [4.28], there is an "underlying assumption in calculating search or retrieval time... that the agency or minister maintains a high-quality record system." Additionally, at [4.29], the guidelines state that "applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers." Further, [4.30] notes that "it is assumed that the decision maker has the skills and experience needed to make a decision on the request."
To retrieve the documents I have requested, a simple search in your FOI mailbox should suffice, using these parameters:
i) In your "sent" folder,
ii) Contains a PDF attachment,
iii) Contains the word "charge" in the attachment title.
This method would quickly identify the relevant documents. Therefore, to claim that this process took 6.5 hours suggests inefficiency in your record-keeping system, which should not be reflected in the charges imposed on me.
Additionally, you have estimated that it will take 21.57 hours to review and make decisions on the 45 documents. This estimate is excessive and unsupported by the nature of the requested documents. My request concerns the most recent 30 notice of charge letters sent to FOI applicants. These charge letters are largely template documents, with only minimal customisation (e.g., applicant’s personal details, scope of the request, charge amount, FOI reference number, and the decision-maker’s signature).
To substantiate this, I conducted a sampling exercise of previous charge letters issued by your department, as published on the transparency website Right to Know. I identified 18 FOI charge letters consisting of 65 pages. The average length of these documents was 3.61 pages per letter. Of these, only one page per document contained unique information, such as the applicant's personal details and the scope of their request. The remaining 47 pages were duplicates, varying only in the charge amount, FOI reference number, and the decision-maker's signature.
If we extrapolate this analysis to the 30 charge letters you have identified, it is clear that more than one-third of the 211 pages identified are standard templates with no sensitive content, thus requiring no decision-making time. Even for the remaining documents, only a small portion would need review for sensitivities.
Considering this, your estimate of 21.57 hours for decision-making is significantly inflated. Additionally, with my revised scope (dated 18 October 2024) eliminating the need for third-party consultation, the decision-making time is further reduced.
2. The Cost of Calculating and Collecting this Charge Exceeds the Cost of Processing the Request
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 $428.83 might incur a net financial cost to the Commonwealth. Given that one-third of the documents I have requested require minimal, if any, review, I urge you to reconsider the imposition of the actual cost of processing this request. 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 comparable to 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, making it preferable to not impose the charge at all.
3. Public Interest in Disclosure
I believe that providing access to the requested documents would serve the public interest. I have concerns that some government agencies may be using inflated charges as a mechanism to delay or discourage access to information. Disclosure of this information would provide insight into whether your department is adequately meeting its statutory obligations under the FOI Act.
As part of my broader inquiry into FOI practices across multiple agencies, I made similar requests to approximately 15 other agencies (as detailed here:
https://www.righttoknow.org.au/info_request_batch/47). I intend to use the information gathered from these requests to file a complaint with the OAIC, with the aim of prompting an investigation into the administration of FOI requests across offending agencies. The charge letter that you have sent in regard to my request is evidence that there are deficiencies with respect to your department's administration of FOI requests.
In CropLife Australia. The Assistant Commissioner, Freedom of Information, noted at [24]:
"where there are concerns about whether an agency is carrying out its statutory obligations appropriately with respect to a particular process (such as under the FOI Act), providing access to documents relating to the conduct of those obligations would go beyond merely enhancing transparency by assisting inquiry into whether the agency is adequately fulfilling those obligations. Accordingly, I accept the applicant’s submission that giving access to information that might reveal any deficiencies with respect to the Department’s administration of FOI requests under the FOI Act would be in the general public interest."
In light of my arguments set out in:
- [Item 1]: The charge has been incorrectly assessed,
- [Item 2]: The cost of calculating and collecting the charge exceeds the cost of processing the request, and
- [Item 3]: Disclosure would be in the public interest,
I respectfully request that you reconsider the charge imposed on my request.
Yours sincerely,
CR
-----Original Message-----
OFFICIAL
Dear CR
Thank you for your response to the notice of preliminary charges, issued
to you on 17 October 2024.
I have considered your email, and it is unclear to me which option you
seek to exercise in response to the notice.
Further clarification is required from you for your access request to
proceed.
On page 2 of the attached notice, we refer you to 3 options available to
you in response to the preliminary charges. I summarise them below;
A. Agree to pay the estimated charge.
B. Contend the charge, or
C. Withdraw your access request.
It is unclear from your response as to whether you wish to contend the
charges or withdraw your request.
(for completeness) Option A – Agree to pay the charge.
If you choose this option, please refer to the notice for your payment
options.
Option B – Contesting the preliminary charge estimate.
If you have formed the view that the charge has been wrongly assessed,
should be reduced or should be waived, you are able to contest the charge
by providing a detailed submission.
The decision maker has the discretion to reduce or waive the charge and in
doing so, will consider the 2 matters set out in s 29(5) of the Freedom of
Information Act 1982 (Cth) (the Act). They are;
1. Whether 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
2. Whether giving access to the document in question is in the general
public interest of a substantial section of the public.
The decision maker will also genuinely consider any other relevant matter
provided by you in your submissions, beyond the 2 matters set out above.
In your response you suggest a reduced scope to your access request, to
eliminate the charges. The decision maker can consider this, once we
receive submissions from you that clearly indicate that you contend the
preliminary charge, however the decision maker will also consider the
steps the department has taken up to this point to search for, and
collect, the documents pertaining to your original access request. The
notice provides you with an itemised list of the costs, including those
relating to the time taken to search for the documents, on page 1. A
decision on whether to apply, reduce or waive the charges will be
considered on balance.
Option C – Withdrawing your request.
If you do not wish to pay the charge or provide submissions contesting the
charge for further review and consideration from the decision maker, you
can choose to withdraw your request. On receipt of your intention to
withdraw, in writing, the process will cease, and no further action will
be taken on your request.
You may consider, revise and/ or submit a fresh FOI access request at any
time. Note that preliminary charges are considered for all relevant
matters and are considered case-by-case on merit. This email does not
guarantee that a fresh FOI request with a revised scope, will avoid
incurring charges.
If the department does not receive a response that aligns with one of the
3 options above, your access request will be considered withdrawn 30 days
from the date of the notice.
Kind Regards
Sasha Pesic
Senior FOI Officer
Freedom of Information
Information Law Team
Legal Branch | COO Division
GPO Box 2013 Canberra ACT 2601 | [1][Department of Industry, Science, Energy & Resources request email]
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