Dear Department of Defence,

I make this FOI request, seeking copy of records held by Defence, of the following:
* Records of consultation, or advice sought (or any other similar activity) by Defence FOI Information Management and Access Governance and Reform Division employees with Defence CFO Group employees regarding the ability or inability to produce the financial records sought by Right to Know FOI Request https://www.righttoknow.org.au/request/2... (the revised scope - a summary report of all ROMAN related travel account codes, by total transactional value, by month, for 2016/17)
* Records of consultation, or advise sought, involving Defence CFO Group employees for the production of transactional and/or summary reports from ROMAN/CMS to provide to the Australian National Audit Office for Performance Audit No.33 of 2015–16 "Defence’s Management of Credit and other Transaction Cards" [Note, to avoid all doubt, the actual transactions themselves are not sought, just records relating to the technical production of said transactional/summary reports from Defence's financial information management systems such as ROMAN/CMS

In accordance with para 6.140 of the Information Commissioner's s 93A FOI Act Guidelines, any public servant’s name, work email address, position or title, contact details, decisions or opinions that may be contained within any document in scope are included in those records because of their usual duties or responsibilities and it would therefore not be unreasonable to disclose (and would not constitute a s 47F exemption ground).

Yours faithfully,

Verity Pane

Dear Melissa,

I acknowledge your request for payment of $45 in your Section 29(1) notice. I would like to remind Defence of the Australian Information Commissioner’s position on seeking charges for minimal amounts as a form of deterring FOI applications.

The Guidelines explain that a charge must not be used to discourage an applicant from exercising the right of access conferred by the FOI Act. Rather, charges should fairly reflect the work involved in providing access to documents on request, and should not be levied where the charges amount requested is exceeded by the costs of collection and any likely increase in Commonwealth costs due to internal review, IC Review, AAT or Federal Court review of the impugned charges assessment.

I am aware that Defence has a rather unethical habit of making spurious charges notices, which it is aware will be challenged, so it can stop the statutory deadline clock if the Applicant seeks internal review or other formalised review mechanism. To avoid all doubt, that is not what I seek nor is what I am doing here. Instead, as per Chapter 4 of the s 93A Freedom of Information Act 1982 Australian Information Commissioner Guidelines, I am inviting Defence to exercise its discretion (which it can exercise at any time, without stopping the statutory deadline clock) as outlined at para 4.9 of those Guidelines to waive the charges.

I will not seek any review, if necessary, until after Defence has completed its FOI decision (Defence is still obligated to have finalised an FOI decision by the statutory due date of 9 October 2017, it can just elect to withhold the decision and documents until these charges are paid, or the 30 day period to review the actual charges decision has expired - which falls after the statutory due date of the decision itself - or review is sought).

For the benefit of Defence, to remind them of their obligations, I have provided relevant extracts of the Guidelines.

4.3 A charge must not be used to discourage an applicant from exercising the right of access conferred by the FOI Act. Rather, charges should fairly reflect the work involved in providing access to documents on request. Implicit in the lowest reasonable cost objective is a prerequisite for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received (see [4.32] below).

4.4 A decision to impose a charge should be transparent. An agency should ensure that the notice to an applicant of a charge fully explains and justifies that charge. This can avoid a later dispute over the imposition or amount of a charge.

Charges are discretionary

4.9 Agencies and ministers have a discretion:

• not to impose a charge for the staff time and resources expended in processing an FOI request (reg 3), independently of any request from an applicant requesting that a charge be reduced or waived

• to impose a lower charge than the charge specified in the Charges Regulations (reg 3)

• to reduce or waive a charge upon receiving a request from the applicant (s 29(4)) (see [ ]–[ ] below)

4.10 In applying the Schedule to the Charges Regulations, agencies and ministers should bear in mind that the Schedule was first written in 1982, and that some specific chargeable activities may be outmoded. For example, the use of agency computers to produce copies of electronic documents is nowadays usually a negligible expense.

4.32 An underlying assumption in calculating search and retrieval time is that the agency or minister maintains a high quality record system. Search and retrieval time is to be calculated on the basis that a document will be found in the place indicated in the agency or minister’s filing system (reg 2(2)(a)) or, if no such indication is given, in the place that reasonably should have been indicated in the filing system (reg 2(2)(b)). In summary, applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers.

4.33 Search and retrieval time does not include time spent by agency officers, other than the decision maker, discussing and reviewing the results of search and retrieval activities.

4.54 The Act requires an agency or minister to consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public’ (s 29(5)(b)). This test is different to and to be distinguished from public interest considerations that may arise under other provisions of the FOI Act. Specifically, the public interest test for waiver in s 29(5)(b) is different to the public interest test in s 11A(5) that applies to conditionally exempt documents.

4.58 The ‘public interest’ is a concept of wide import that cannot be exhaustively defined. The following examples nevertheless illustrate circumstances in which it may be thought appropriate by an agency or minister to reduce or waive a charge under s 29(5)(b) for granting access to a document under the Act:

• The document relates to a matter of public debate, or a policy issue under discussion within an agency, and disclosure of the document would assist public comment on or participation in the debate or discussion.

• The document relates to an agency decision that has been a topic of public interest or discussion, and disclosure of the document would better inform the public as to why or how the decision was made, including highlighting any problems or flaws that occurred in the decision-making process.

• The document would add to the public record on an important and recurring aspect of agency decision making.

• The document is to be used by a researcher in research that is to be published widely or that complements research being undertaken in an agency or elsewhere in the research community.

• The document is to be used by a community or non-profit organisation in preparing a submission to a parliamentary or government inquiry, for example, on a law reform, social justice, civil liberties, financial regulation or environmental or heritage protection issue.

Other grounds for reduction or waiver

4.61 An agency or minister has a general discretion to reduce or not impose a charge, and this discretion is not limited to financial hardship and public interest grounds. The following non-exhaustive list of examples illustrates circumstances in which it may be thought appropriate to do so:

• The cost of calculating and collecting a charge might exceed the cost to the agency of processing the request.

• The document is required for research purposes for which no commercial benefit will flow to the applicant.

• The document is similar to a document that the agency has published on its website under s 11C of the Act.

• The agency was able to identify and retrieve the document easily and at marginal cost.

• The Information Commissioner or AAT has decided in similar circumstances that charges should not be imposed.

4.67 A decision under the FOI Act declining to reduce a charge or not to impose a charge is an access refusal decision and therefore subject to internal review, IC review and review by the AAT (ss 54, 54L and 57A).

Yours sincerely,

Verity Pane

Dear Melissa,

A reminder I am still waiting for Defence to exercise it’s discretion and waive the charges sought, as Defence did in https://www.righttoknow.org.au/request/t... , on the grounds the charges sought will cost more to collect than the charge amount (consistent with the Australian Information Commissioner’s s 93A Guidelines, that amounts generally below $100 are not of sufficient value to warrant the costs involved in seeking charges of and below that amount).

Again, not a request for internal review or any other mechanism that would stop the processing clock (as Defence has used inappropriately before), just asking for Defence to be consistent in its discretion on charges.

Yours sincerely,

Verity Pane

Dear Melissa,

This FOI response is due today, and I have still yet to receive a response in regards to Defence consistently applying, as in https://www.righttoknow.org.au/request/t... , waiver of charges that should not have been applied in the first place, as they are below the costs of collection as per the direction in the Australian Information Commissioner’s s 93A Guidelines and consistent with his rulings in a number of IC Reviews.

It would be appreciated if this could be dealt with in good faith, especially as the documents captured by the scope of the FOI would be less than 20 pages at worst (making the calculations grossly exaggerated).

Yours sincerely,

Verity Pane

Dear Melissa,

Thank you for your decision, and your decision to waive the charges initially sought, which is consistent with the s 93A Guidelines issued by the Australian Information Commissioner. No further action required, you may now close this FOI.

Yours sincerely,

Verity Pane