Our reference: FOI 20/21-0876

                                                        GPO Box 700
                                                                                 Canberra ACT  2601
                                                                           1800 800 110

12 October 2021 ndis.gov.au

Shirley By email: foi+request-7463-8ba608d0@righttoknow.org.au

Dear Shirley

Freedom of Information request – Response to Contention of Charge

I refer to your correspondence of 12 September 2021, in which you contested that the charge has been wrongly assessed pursuant to section 29(4) of the Freedom of Information Act 1982 (FOI Act).

Scope of your request You have requested access to documents about the National Disability Insurance Scheme. Specifically, you requested access to:

The NDIA’s Mobile Application Request for Tender (RFT)
The NDIA’s tender evaluation of DB Result’s submission
The NDIA’s procurement risk assessment of DB Results’ submission
The NDIA’s conflict of interest register specific to DB Results
The NDIA’s vendor/third-party provider risk assessment
Contract amendments, design variance, or changed requirements (mobile application)
Cybersecurity risk assessment (mobile application)

I am an authorised decision maker under section 23(1) of the FOI Act.

Decision I have decided under section 29(4) of the FOI Act to reduce the amount you are liable to pay to $220.00.

The reasons for my decision are set out below.

Background

On 10 September 2021, I notified you of the preliminary estimate of charge for the processing of your FOI request, calculated as follows:

| Search and retrieval time: 4 hours, at $15.00 per hour: | $60.00 | | Decision-making time: 19 hours (not including the first 5 hours*), at $20.00 per hour: | $380.00 | | TOTAL | $440.00 |

Please note that the FOI Act provides that the first 5 hours of decision-making time are free of charge and this is reflected in the calculation.

On 12 September 2021, you advised the Agency that you wish to contend that the charge had been wrongly assessed.

Materials considered

In making my decision, I have considered:

your arguments contesting the preliminary assessment of charge in your email dated 12 September 2021
the scope of your request
the content of the documents identified as falling within scope of your request
advice from Agency officers with responsibility for matters relating to the documents sought
the relevant sections of the FOI Act, the Freedom of Information (Charges) Regulations 2019 (Charges Regulations) and the Guidelines issued by the Australian Information Commissioner under section 83A of the FOI Act (FOI Guidelines)

Relevant legislation

Section 29(4) of the FOI Act provides that, where an applicant has notified an agency that the applicant contends that a charge should be reduced or not imposed in relation to a request under the FOI Act, then the agency may decide that the charge is to be reduced or not imposed.

Section 29(5) of the FOI Act provides that, without limiting the matters that the agency may take into account when making a decision about whether to reduce or not impose a processing charge, the decision maker must consider:

whether payment of a charge, or part of it, would cause financial hardship to an applicant
whether the giving of access to the documents in question is in the general public interest or in the interest of a substantial section of the public

Section 29(8) of the FOI Act provides that, if an applicant makes a contention about a charge as mentioned in section 29(4) and the agency makes a decision to reject the contention in whole or in part, then the agency must give the applicant written notice of the decision and the reasons for the decision.

Reasons for decision

Financial hardship

In accordance with section 29(5)(a) of the FOI Act, I have considered whether payment of the charge or part of it, would cause financial hardship to you. Your correspondence dated 12 September 2021 did not provided any evidence that the payment of the charge would cause you financial hardship. Therefore, I have decided that the payment of the charge would not cause you financial hardship and no discount on the charge would apply on this ground.

General public interest or in the interest of a substantial section of the public

In accordance with section 29(5)(b) of the FOI Act, I have also considered whether the giving of access to the documents in question is in the general public interest or in the interest of a substantial section of the public. I note you have not made submissions in support of this disclosure being in the public interest. Nonetheless, I have considered this ground below.

Paragraph 4.109 of the FOI Guidelines provides that:

The ‘public interest’ is a broad concept that cannot be exhaustively defined. When considering the public interest, it is important that the agency or minister direct its attention to the advancement of the interests or welfare of the public, and this will depend on each particular set of circumstances. Further, the public interest is not a static concept confined or defined by strict reference points. The following examples nevertheless illustrate circumstances in which the giving of access may be in the general public interest or in the interest of a substantial section of the public:

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

I have been advised that the subject matter of your requests, being the new mobile application for NDIS participants to access the Agency’s services, has been subject to questioning by members of the Australian Senate Community Affairs Committee. Given that there has been recent public debate on the procurement of the NDIS mobile application¹ and that disclosure of such information would advance the objects of the FOI Act, I find that giving access to the documents you have requested would be in the general public interest. However, I have taken into consideration that information on this topic has already been made public. On this basis I have decided to discount the charge by 50%.

Other grounds In your correspondence of 12 September 2021, you stated that the charge has been wrongly assessed because document archiving and retrieval is suboptimal. You consider you should not be charged for recordkeeping inefficiencies. You also claim that the documents should be readily accessible.

Paragraph 4.68 of the FOI Guidelines provides that:

…an estimated charge must be as fair and accurate as possible.

Paragraph 4.69 of the FOI Guidelines provides that:

…the estimate should be based on an assumption that the agency or minister maintains a well-organised record keeping system that enables easy identification and location of documents.

The preliminary estimate of charge includes 4 hours of search and retrieval time. I do not consider that this estimate to be excessive or reflect ineffective recordkeeping. Rather it reflects the actual time taken to undertake this task.

In your 12 September 2021 correspondence you mention that ‘[e]ach of these requests were submitted individually. It was entirely an arbitrary decision to cluster them into a single enquiry.’ Our records show this is not accurate as you made one single request on 12 June 2021 for the documents listed above.

You have raised concerns that 24 hours of decision making time is unreasonable and unjustified. I have considered your views on this matter and disagree for the following reasons:  The 14 documents have approximately 250 pages and contain sensitive material. Thorough and careful assessment by the decision maker will be required increasing the ‘decision making’ time required  The decision making time also includes the time taken to undertake consultations with third parties under the FOI Act  The decision maker will also need time to schedule and prepare a decision on each document, as well as preparing the notice of decision

¹ Australian Senate, Question on Notice no. 3039, available at <https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=b3de9f47-5c5f-4a6f-b082- de6fe0057dd8>

Finally, as no question of whether processing your request would substantially and unreasonably divert resources of the Agency from other operations has arisen, I have not taken into consideration item 6 in your 12 September 2021 correspondence.

Having regard to the Agency’s resources required to process your request, the charges imposed on you to contribute to these costs, as well as the matters outlined above, I am satisfied that the charges, taking into account the 50% discount, have been fairly assessed.

Amended charge estimate

In accordance with section 29(4) of the FOI Act, I have decided to reduce the charge you are liable to pay for the processing of your request. The charge payable by you is now:


Search and retrieval time: 4 hours, at $15.00 per hour:	$60.00
Decision-making time: 19 hours (not including the first 5 hours*), at $20.00 per hour:	$380.00
SUBTOTAL	$440.00
Minus 50% public interest discount	- $220.00
TOTAL	$220.00

Please note that the FOI Act provides that the first 5 hours of decision-making time are free of charge and this is reflected in the calculation.

Options to proceed with your request

In order for your request to continue to be processed, you are required to respond in writing within 30 days of receipt of this notice in accordance with one of the following options:

A. pay the charge

B. request a review of the decision to impose the charge

C. withdraw your FOI request

Further information on options A, B and C are set out below.

Option A – pay the charge

As the charge exceeds $100, you are required to pay a deposit of $55.00 which is 25% of the total amount within 30 days of receiving this notice. Alternatively, you may elect to pay the charge in full at this point.

If you wish to pay the charge please notify me as soon as possible, so I can raise an invoice to facilitate your payment by cheque or electronic funds transfer.

Option B – request a review of the decision to impose the charge

If you are dissatisfied with my decision in relation to the reduced charge, you may apply for internal review or Information Commissioner review of the decision. We encourage you to seek internal review as a first step as it may provide a more rapid resolution of your concerns.

Internal review

Under section 54 of the FOI Act, you may apply in writing to the Agency for an internal review of my decision. The internal review application must be made within 30 days of the date of this letter. Details on how to request an internal review of my decision are located at Attachment A.

Information Commissioner review

Under section 54L of the FOI Act, you may apply directly to the Information Commissioner to review my decision. An application for review by the Information Commissioner must be made

Option C – withdraw your request

If you wish to withdraw your request, you may do so in writing. No charges will be payable if your request is withdrawn at this stage.

If you do not provide a written response in accordance with one of Options A, B or C above within 30 days of receiving this notice, your request will be taken to have been withdrawn under subsection 29(2) of the FOI Act.

Time limits for processing your request

Section 31 of the FOI Act provides that where a notice is sent to an applicant regarding the payment of a charge in respect of a request, the time limit for processing the request is suspended from the date the notice is received until either:

the day following payment of the charge (in full or the required deposit),
if applicable, the day following the notification to the applicant of a decision not to impose the charge

Attachment B to this letter contains excerpts of the relevant provisions of the FOI Act.

If you have any questions about this matter, please do not hesitate to contact me at foi@ndis.gov.au

Yours sincerely

Rafaela A/g Assistant Director FOI Parliamentary, Ministerial & FOI Branch Government Division

Attachment A

Your review rights

Internal Review

If you disagree with my decision in relation to the charge, you have the right to apply for an internal review of this decision. The review will be conducted by a different person to the person who made the original decision.

If you wish to seek an internal review of the decision, you must apply for the review, in writing, within 30 days of receipt of this letter. No particular form is required for an application for internal review, but to assist the review process, you should clearly outline your grounds for review (that is, the reasons why you disagree with the decision).

Applications for review should be sent by email to me at foi@ndis.gov.au or by post to:

Freedom of Information Section Parliamentary, Ministerial & FOI Branch Government Division National Disability Insurance Agency GPO Box 700 CANBERRA ACT 2601

Review by the Office of the Australian Information Commissioner

The FOI Act also gives you the right to apply to the Office of the Australian Information Commissioner (OAIC) to seek a review of this decision.

If you wish to have the decision reviewed by the OAIC, you may apply for the review, in writing, or by using the online merits review form available on the OAIC’s website at www.oaic.gov.au, within 60 days of receipt of this letter.

Applications for review can be lodged with the OAIC in the following ways:

Online: www.oaic.gov.au
Post: GPO Box 5218, Sydney NSW 2001
Email: enquiries@oaic.gov.au
Phone: 1300 363 992 (local call charge)

Complaints to the Office of the Australian Information Commissioner or the Commonwealth Ombudsman

You may complain to either the Commonwealth Ombudsman or the OAIC about actions taken by the Agency in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.

Your complaint to the OAIC can be directed to the contact details identified above. Your complaint to the Ombudsman can be directed to:

Phone: 1300 362 072 (local call charge)
Email: ombudsman@ombudsman.gov.au

Your complaint should be in writing and should set out the grounds on which it is considered that the actions taken in relation to the request should be investigated.

Attachment B

Relevant provisions of FOI Act and Regulations

FOI Act

Section 11C Publication of information in accessed documents

Scope

(1) This section applies to information if an agency or Minister gives a person access to a document under section 11A containing the information, except in the case of any of the following:

(a) personal information about any person, if it would be unreasonable to publish the information;

(b) information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;

(c) other information of a kind determined by the Information Commissioner under subsection (2), if it would be unreasonable to publish the information;

(d) any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs (a) to (c).

(2) The Information Commissioner may, by legislative instrument, make a determination for the purposes of paragraph (1)(c).

Publication

(3) The agency, or the Minister, must publish the information to members of the public generally on a website by:

(a) making the information available for downloading from the website; or

(b) publishing on the website a link to another website, from which the information can be downloaded; or

(4) The agency may impose a charge on a person for accessing the information only if:

(a) the person does not directly access the information by downloading it from the website (or another website); and

(b) the charge is to reimburse the agency for a specific reproduction cost, or other specific incidental costs, incurred in giving the person access to that particular information.

(5) If there is a charge for accessing the information, the agency or Minister must publish details of the charge in the same way as the information is published under this section.

Time limit for publication

(6) The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document.

(7) In this section:

working day means a day that is not:

(a) a Saturday;

Section 29 Charges

(b) a Sunday; or

(c) a public holiday in the place where the function of publishing the information under this section is to be performed.

(1) Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge in respect of a request for access to a document, or the provision of access to a document, the agency or Minister must give to the applicant a written notice stating:

(a) that the applicant is liable to pay a charge; and

(b) the agency’s or Minister’s preliminary assessment of the amount of the charge, and the basis on which the assessment is made; and

(d) the matters that the agency or Minister must take into account under subsection (5) in deciding whether or not to reduce, or not impose, the charge; and

(e) the amount of any deposit that the agency or Minister has determined, under the regulations, that the applicant will be required to pay if the charge is imposed; and

(f) that the applicant must, within the period of 30 days, or such further period as the agency or Minister allows, after the notice was given, notify the agency or Minister in writing:

(i) of the applicant’s agreement to pay the charge; or

(ii) if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both—that the applicant so contends, giving the applicant’s reasons for so contending; or

(iii) that the applicant withdraws the request for access to the document concerned; and

(g) that if the applicant fails to give the agency or Minister such a notice within that period or further period, the request for access to the document will be taken to have been withdrawn.

(2) If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f) within the period or further period mentioned in that paragraph, the applicant is to be taken to have withdrawn the request for access to the document concerned.

(3) An agency or Minister must not impose a charge in respect of a request for access to a document, or the provision of access to a document, until:

(a) the applicant has notified the agency or Minister in a manner mentioned in paragraph (1)(f); or

(b) the end of the period or further period mentioned in that paragraph.

(4) Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed.

(5) Without limiting the matters the agency or Minister may take into account in

determining whether or not to reduce or not to impose the charge, the agency or Minister must take into account:

(a) whether the 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

(b) 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.

(6) If the applicant has notified the agency or Minister in the manner mentioned in subparagraph (1)(f)(ii), the agency or Minister must take all reasonable steps to enable the applicant to be notified of the decision on the amount of charge payable as soon as practicable but in any case no later than 30 days after the day on which the applicant so notified the agency or Minister.

(7) If:

(a) that period of 30 days has elapsed since the day on which the agency or

Minister was so notified; and

(b) the applicant has not received notice of a decision on the amount of charge

payable;

the principal officer of the agency, or the Minister, as the case requires, is, for all purposes of this Act, taken to have made, on the last day of the period, a decision to the effect that the amount of charge payable is the amount equal to the agency’s or Minister’s preliminary assessment of the amount of the charge mentioned in paragraph (1)(b).

(8) If:

(a) the applicant makes a contention about a charge as mentioned in

subsection (4); and

(b) the agency or Minister makes a decision to reject the contention, in whole

or in part;

the agency or Minister, as the case requires, must give the applicant written notice of the decision and of the reasons for the decision.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

(9) A notice under subsection (8) must also state the name and designation of the person making the decision and give the applicant appropriate information about:

(a) his or her rights with respect to review of the decision; and

(b) his or her rights to make a complaint to the Information Commissioner in

relation to the decision; and

 (c) the procedure for the exercise of those rights;

including (where applicable) particulars of the manner in which an application for internal review (Part VI) and IC review (Part VII) may be made.

(10) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsection (8).

(11) A notice under subsection (8) is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.

31 Decision to impose charge—extended period for processing request

Scope

(1) This section applies if:

(a) on a particular day (the charge notice day) an applicant in relation to a request receives a notice under subsection 29(1) or (6) to the effect that the applicant is liable to pay a charge in respect of the request; and

(b) the notice is received before the end of the period (the processing period) applicable under paragraph 15(5)(b) in relation to the request (or that period as extended).

Processing period to be calculated disregarding period when charge unpaid

(2) In working out the length of the processing period (or that period as extended) for the purposes of paragraph 15(5)(b), disregard the number of days in the period starting on the charge notice day and ending on the earliest occurring of the following days:

(a) the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the regulations), whether or not the decision to impose the charge has been considered under section 29, or is the subject of a review under this Act;

(b) if the amount of the charge is changed under section 29, or following a review under this Act—the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the regulations) as changed following the review;

(c) if, under section 29, or following a review under this Act, a decision is made with the effect that the charge is not imposed—the day the applicant is notified of the decision.

Note: A decision under section 29 relating to the imposition of a charge or the amount of a charge may be the subject of an internal review (see Part VI), an IC review (see Part VII) or review by the Tribunal (see Part VIIA).

Freedom of Information (Charges) Regulation 1982

Regulation 3 Liability to pay charges

(1) Where an applicant has made a request for access to a document of an agency or an official document of a Minister, the agency or Minister may make a decision whether the applicant is liable to pay, in respect of the request or in respect of the provision to the applicant of access to the document, any of the charges applicable under these Regulations.

(2) Where an agency or a Minister has, under subregulation (1), made a decision that an applicant is liable to pay a charge, then, except where regulation 8, 9 or 10 applies, the charge is payable by the applicant in the amount or at the rate fixed by, or in accordance with, the Schedule.

Regulation 4 Charges applicable generally

Subject to these Regulations:

(a) the charges set out in Part I of the Schedule are applicable in respect of a request for access to a document; and

(b) the charges set out in Part II of the Schedule are applicable in respect of the provision of access to a document to which a request relates.

Regulation 11 Charges to be paid before access is granted

(1) Subject to subregulation (2), where an applicant is liable to pay a charge in respect of a request for access to a document or in respect of the provision of access to the

Regulation 12 — Deposits

(1) Where:

(a) an agency or a Minister has made a decision that an applicant is liable to pay, in respect of a request or in respect of the provision of access to the document to which the request relates, a charge or charges; and

(b) the amount, or the estimated amount, of that charge or of those charges exceeds $25;

the agency or Minister may make a decision whether the applicant is required to pay a deposit on account of the charge or charges that the applicant is liable to pay under these Regulations.

(2) Where an agency or a Minister has made a decision that an applicant is required to pay a deposit on account of the charge or charges that the applicant is liable to pay under these Regulations, the amount of the deposit is such amount not exceeding:

(a) where the amount, or the estimated amount, of the charge or charges exceeds $25 but does not exceed $100 — $20; or

(b) where that amount or estimated amount exceeds $100 — 25 per centum of that amount or estimated amount;

as is determined by the agency or Minister.

Schedule

Part I Charges applicable in respect of a request for access to a document

(regulation 4)

Item No	Charge	Amount or Rate of Charge
2	Where the request relates to a document other than a document in relation to which a charge is applicable under item 3 — a charge in respect of the time spent by the relevant agency or the relevant Minister in searching for or retrieving the document	$15.00 per hour
3	Where the request, being a request made to an agency, is in respect of information that is not available in discrete form in documents of the agency — a charge in respect of the production of a document containing the information in discrete form by the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information	an amount not exceeding the actual cost incurred by the agency in producing the document
4	Where (a) the request relates to a document by which words are recorded in a manner in which they are	$4.40 per page of transcript

Charge

Item No	Charge	Amount or Rate of Charge

capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form; and

(b) for the purpose of making a decision on the request, a written transcript of the words recorded or contained in the document is produced, a charge in respect of the production of such a written transcript

5 A charge in respect of the time that is spent (other than on an application under section 54 or 54A of the Act for the review of a decision) by an agency or Minister in deciding whether to grant, refuse or defer access to the document or to grant access to a copy of the document with deletions, including time spent

(a) zero for the first 5 hours; and

(b) $20 for each subsequent hour

(a) in examining the document;

(b) in consultation with any person or body;

(d) in notifying any interim or final decision on the request

Part II Charges applicable in respect of the provision of access to a document to which a request relates

(regulation 4)

Item No	Charge
1	Where access to the document to which the request relates is given

	(a) in the form of an opportunity to inspect the document under the supervision of an officer; or
	(b) in the case of a document that is an article or thing from which sounds or visual images are capable of being produced — in the form of arrangements for the applicant to hear or view those sounds or visual images under the supervision of an officer,
	a charge in respect of the period during which the officer supervises the inspection, hearing or viewing, as the case may be
2	Where the request relates to a written document and access to the document is given in the form of the provision of a photocopy of the document — a charge in respect of the number of pages of photocopy provided to the applicant
3	Where the request relates to a written document and access to the document is given in the form of the provision of a copy (other than a photocopy) of the document — a charge in respect of the number of pages of copy provided to the applicant
4	Where
	(a) the request, being a request made to an agency, is in respect of information (in this item referred to as the ‘relevant information’) that is available in discrete form in a document produced (whether for the purposes of the request or not) by the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information;
	(b) deletions are made from the document before access to it is given to the applicant; and
	(c) it is not reasonably practicable to make these deletions otherwise than by the use of a computer or other equipment referred to in paragraph (a), a charge in respect of the production by the computer or other equipment of a copy of the document with those deletions
4A	A charge for the production by an agency of a copy of a document in the form of a computer tape or a computer disk
5	Where

Item No | Charge | Amount or Rate of Charge

(a) the request relates to a document that is an article or thing from which sounds or visual images are capable of being produced; and

(b) access to the document is given in the form of arrangements for the applicant to hear or view those sounds or visual images, a charge in respect of the arrangements so made other than any arrangements in respect of which a charge is applicable under Item 1

6. Where

an amount not exceeding the actual costs (including, where applicable, the cost of any tape, film or other article or thing provided) incurred by the relevant agency or Minister in producing the copy

(a) the request relates to a document that is an article or thing from which sounds or visual images are capable of being produced; and

(b) access is given in the form of the provision of a copy of the document, a charge in respect of the production of the copy so provided

7. Where

$4.40 per page of transcript

(a) the request relates to a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form;

(b) access is given in the form of the provision of a written transcript (with or without deletions) of the words recorded or contained in the document; and

(c) the applicant has not paid, or is not liable to pay, as a charge in respect of the request for access to the document, a charge in respect of the production of such a written transcript, a charge in respect of the production of that written transcript

8. Where

an amount not exceeding the cost of postage or delivery

(a) access to the document to which the request relates is to be given in the form of the provision of a copy of the document; and

(b) the copy so provided is, at the request of the applicant, to be sent by post or delivered to him,

a charge in respect of the posting or delivery of the copy