Andrews and Australian Research Council - [2007] AATA 1026

CATCHWORDS – FREEDOM OF INFORMATION – request for documents relating to business affairs and containing personal information – obligation to notify under ss 59(3) and 59A(3) of the Freedom of Information Act 1982 – whether fulfilment of obligation can be deferred until Tribunal reviewed claims for exemption under ss 41 and 43 – scope of obligation – what are “reasonable steps” – whether regard can be had to impact of compliance on agency – when is “as soon as practicable” – obligation cannot be deferred and cannot be qualified by considerations relating to third parties

Freedom of Information Act 1982 ss 3, 4, 11, 15, 15A, 16, 20, 24A, 27, 27A, 33, 36, 37, 38, 40, 41, 43, 55, 58, 59 and 59A
Administrative Appeals Tribunal Act 1975 ss 33, 42A and 43
Law and Justice Legislation Amendment Act 1994
Freedom of Information Amendment Bill 1991
Migration Act 1958 s 198
Income Tax Assessment Act 1936 s 222AOJ

Re Yun Jin Ho and Human Rights and Equal Opportunity Commission [1998] AATA 790
Re Rees and Australian Federal Police (1999) 57 ALD 686
Re Allrange Tree Farms Pty Ltd and Deputy Commissioner of Taxation (2004) 84 ALD 238
Re Albanese and Chief Executive Officer of the Australian Customs Service [2006] AATA 783
Thompson v Goold & Co [1910] AC 409
Newcastle City Council v GIO General Ltd (1997) 149 ALR 623

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; (2003) 80 ALR 799
Ni v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1143

The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25

Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762
Lewai v Minister for Immigration and Multicultural Affairs and Davidson [2001] FCA 1848
Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283
Chu v Telstra Corporation Ltd (2005) 147 FCR 505; 89 ALD 39
Deputy Commissioner of Taxation v Pejkovic [2000] NSWSC 1176
Rolfe v Willis (1916) 21 CLR 152

DECISION AND REASONS FOR DECISION [2007] AATA 1026

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2006/287
GENERAL ADMINISTRATIVE DIVISION     )

Re SHARON ANDREWS

Applicant

AndAUSTRALIAN RESEARCH COUNCIL

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  25 January 2007
Place:  Melbourne

Decision:The Tribunal:
1.will defer the review of the merits of the decision under review until the Australian Research Council has complied with its obligations under ss 59(3) and 59A(3) of the Freedom of Information Act 1982 .
2.will hold a directions hearing on a day to be fixed in order to gain an understanding of the Australian Research Council’s progress in fulfilling its obligation.
S A FORGIE
Deputy President

REASONS FOR DECISION

The applicant, Ms Sharon Andrews, made a request to the Australian Research Council (ARC) under the Freedom of Information Act 1982 (FOI Act). In broad terms, she requested correspondence received by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] AATA 1026
Decision Date: 25 January 2007

CaseChat Overview and Summary

Sharon Andrews made a request to the Australian Research Council (ARC) under the Freedom of Information Act 1982 (FOI Act) for correspondence relating to the approval or rejection of financial assistance for a project under the National Competitive Grants Program for 2004 and 2005. Some documents were provided, while others were refused and affirmed on the basis of their being exempt under ss 36, 40(1)(d) or 41 of the FOI Act. The case before the Tribunal concerns the obligations under ss 59(3) and 59A(3) of the FOI Act, which require an agency or Minister to notify certain persons of an application to the Tribunal for review of the decision not to grant access to a document containing personal information or business affairs information. The ARC submitted that it need not notify them until the Tribunal had considered whether the documents were exempt under other provisions of the FOI Act. The Tribunal decided that the obligation to take, as soon as practicable, reasonable steps to notify the relevant persons arises immediately upon Ms Andrews’ applying to the Tribunal and that the Tribunal does not have power to mitigate that obligation. The Tribunal’s decision was based on the plain meaning of the words of ss 59(3) and 59A(3) in their context and having regard to the purpose of the FOI Act. The Tribunal also considered the history of ss 59(3) and 59A(3), which confirmed the conclusion that the obligation to notify arises immediately upon Ms Andrews’ applying to the Tribunal. The Tribunal’s decision was also based on the principles of statutory interpretation, which suggest that the obligation arises immediately upon Ms Andrews’ applying to the Tribunal. The Tribunal will adjourn further consideration until it has fulfilled its obligation and will hold a directions hearing on a date to be fixed in order to gain an understanding of the ARC’s progress in fulfilling its obligation.

Orders