Dear National Offshore Petroleum Safety and Environmental Management Authority,

I request access to the following documents under the Freedom of Information Act 1982:

1. The most recent 30 notices of charges issued to FOI applicants.

For each of these 30 requests, if applicable, please also provide:

2. Any subsequent decisions regarding charges following applicant contention.

3. Any subsequent decisions regarding charges following internal or external review.

Please exclude the following information:

i) Personal information of FOI applicants.

Yours faithfully,

CR

Dear FOI Officer,

I am writing to amend the scope of my FOI request to assist with its processing.

As I wish to access only recent charge decisions, I have introduced a time frame and clarified the exclusions. I confirm the revised scope of my request as follows:

1. The most recent 30 notices of charges issued to FOI applicants.

For each of these 30 requests, if applicable, please also provide:

2. Any subsequent decisions regarding charges following applicant contention.

3. Any subsequent decisions regarding charges following internal or external review.

The time period for my request is from 1 July 2022 to 1 October 2024.

Please exclude the following information:

i) Personal information of FOI applicants, including supporting evidence or details of personal circumstances in a financial hardship contention.

ii) Emails that attached the charges notices/decision letters.

Please feel free to contact me if you require any clarification or have further questions regarding this request.

Yours sincerely,

CR

Dear FOI Officer,

I decline the proposed revised scope.

Perhaps you could tell me the issue with the current scope?

This request was sent to multiple agencies, and some reported that the scope in its current form may require third party consultation. In order to assist processing, please add the following exclusions:

• Personal information of third parties.
• Business information of third parties.
• Personal information of Commonwealth staff below SES.

Happy to make reasonable adjustments in order to facilitate processing, however, your proposed scope removes some critical information I am seeking.

Yours sincerely,

CR

Dear FOI Officer,

Thank you for your response.

Your interpretation of the scope is correct.

To clarify, I am requesting the following documents:
1. The notice of charge letter that informs the applicant of the charge to be imposed.
2. The decision letter issued after the applicant contests the charge, which either: affirms the original charge, adjusts the charge, or waives the charge.
3. Any decision made following an internal or external review of the charge, which either: affirms the original charge, adjusts the charge, or waives the charge.

I hope this clears up any confusion.

Yours sincerely,

CR

Dear FOI Officer,

I decline the proposed revised scope.

I don't understand why you insist on changing the scope. I sent this FOI request to 16 agencies and you are the only one who is having trouble understanding the scope of this request.

There is nothing wrong with the scope in its current form.

Yours sincerely,

CR

Dear FOI Team,

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 7 hours to retrieve the 30 documents relevant to my request. I submit that this estimate is the result of poor or inefficient record-keeping practices. The FOI Guidelines at [4.28] assume that agencies maintain a high-quality record system, and at [4.29], they explain that applicants should not be disadvantaged by poor record-keeping. Furthermore, [4.30] assumes that decision-makers have the necessary skills to efficiently process requests.
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 7 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 11.16 hours to review and make decisions on the 30 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). I submit that the majority of pages are essentially duplicates, varying only in the charge amount, FOI reference number, and the decision-maker's signature. As these pages are standard templates with minimal sensitive content, they should require little to no decision-making time.

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 $229.67 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 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, 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 agency 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_requ...). 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. According to the Agency FOI 2022-23 dataset on data.gov.au, it appears that your agency issued charges on almost 43% of requests received during the 2022-23 financial year. This ratio is significantly higher than other agencies. In addition, the charge letter that you have sent in regard to my request is further evidence that there are deficiencies with respect to your agency'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

Dear FOI Team,

I wish to provide clarification as to the scope of my request.

If a preliminary charge notice or decision of a charge is sent via the body of an email (as opposed to an email attachment) I wish to access a copy of that email, as well as the applicant's contention reasons.

Yours sincerely,

CR