Date: Fri, 19 Aug 2022 06:58:01 +0000
Subject: Internal review of Freedom of Information request - Business case for the Points Based Activation System
From: Justin Warren <xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx>
To: DEWR - FOI <xxx@xxxx.xxx.xx>

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Dear Department of Employment and Workplace Relations,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of Employment and Workplace Relations's decision to impose charges for processing my FOI request 'Business case for the Points Based Activation System'.

I believe the decision maker’s decision to affirm the preliminary charges is flawed and does not follow the requirements of the FOI Act or the relevant case law.

The decision accepts that “there is a broad public interest in the material within the scope of your request, including that the documents relate to a decision by the department that has been a topic of public interest or discussion, and disclosure of the documents would inform the public as to why or how the decision was made.”

I draw your attention to the FOI Guidelines at [4.100] which states, in part:
"If an agency or minister accepts that disclosure of a document will be in the general public interest or that there will be financial hardship to the applicant, it may be difficult for it to justify why a charge has been reduced instead of not imposed."

The decision maker then went on to conduct a balancing exercise, with the public interest on the one hand, and other “countervailing factors” on the other.

One factor identified was that some of the documents contain Cabinet-related material. The decision-maker did not cite s 34 of the FOI Act here, which provides an exception from disclosure due to the public interest in maintaining Cabinet confidentiality. It is not clear to me what the relevance is to the imposition of changes.

The decision maker then cited a second factor, namely the resource implications for the department in processing my request.

The FOI Guidelines relevantly state, at [4.20]:
"The overall impact of charges in recovering costs to government does not, of itself, justify imposing a charge for an individual request."

The decision maker stated that “Any reduction in the charge due to the public interest in the documents is mitigated by the resource implications for the department in making a decision on access in relation to the additional seven documents (totalling 103 pages).” This seems to suggest that the motivation for imposing a charge is recovering costs to government. No additional reasoning was provided by the decision maker as to why the imposition of the charge was appropriate.

I draw your attention to the FOI Guidelines from [4.109] to [4.113]. At [4.111] states:
"The AAT decision of MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) explains that an agency should compare the number of documents within the scope of an FOI request and the cost of processing against the subject matter of the request when deciding whether to exercise its discretion to waive a charge on public interest grounds."

In MacTiernan the charge assessed was $2,491.36, substantially more than both the $370 charge that has been affirmed, and the $513 processing charge that was alleged. My FOI request relates to a government program that is a key part of Workforce Australia (previously called the New Employment Services Model). While I am unable to find budget figures specific to the PBAS program, p78 of the Portfolio Budget Statements 2022–23 Budget Related Paper No. 1.4 states that the administered expenses for 2022-23 for Workforce Australia is over $1.3 billion.

I put it to you that the assessed charges are a pittance compared to the cost of the PBAS program and the impact on the budget if it is not well managed.

Given the agreed public interest in the document requested, and the tiny cost of providing access to them, I suggest that any justification for why the charges should not be waived on public interest grounds had better be phenomenally good. Otherwise it may appear that the decision maker has either not engaged with the materials with appropriate skill and diligence, or is deliberately using charges to discourage access to information, contrary to the objects of the FOI Act. That would be most unfortunate.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/business_case_for_the_points_bas

Yours faithfully,

Justin Warren



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