Australian Fisheries Management Authority and Whish-Wilson (Freedom of information)
[2017] AATA 375
•24 March 2017
Australian Fisheries Management Authority and Whish-Wilson (Freedom of information) [2017] AATA 375 (24 March 2017)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2016/3038
Australian Fisheries Management Authority
APPLICANT
AndPeter Whish-Wilson
RESPONDENT
Appeal from: [2016] AICmr 29
INTERLOCUTORY DECISION
Tribunal:Dr James Popple, Senior Member
Date:24 March 2017
Place:Canberra
The Tribunal has jurisdiction to review the Acting Information Commissioner’s decision of 27 May 2016.
........................................................................
James Popple, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION — Access to documents — whether Tribunal has jurisdiction to review Information Commissioner’s decision — whether Tribunal has power to refuse access to a document to which access has been granted — variation of access refusal decision — whether original decision can be varied under Freedom of Information Act 1982, s 55G if revised decision does not give access to requested document in full.
LEGISLATION
Freedom of Information Act 1982, ss 4(1), 15, 22, 27, 47, 47E, 47F, 47G, 53A, 53B, 53C, 54K, 54L, 54M, 55G, 55K, 57A, 58
CASES
Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 25
Duncan and Secretary, Department of Human Services (2016) 151 ALD 577
Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority [2016] AICmr 30
Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29
SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016)
REASONS FOR DECISION
Dr James Popple, Senior Member
24 March 2017
Summary
The FOI applicant made a request to the Australian Fisheries Management Authority (AFMA) for documents, under s 15 of the Freedom of Information Act 1982 (the FOI Act). AFMA refused access to some of the documents sought. The FOI applicant applied to the Information Commissioner for review of that decision. While the Commissioner was undertaking the review, AFMA purported to revise its decision (under s 55G) so as to give the FOI applicant access to edited copies of the documents in dispute.
An affected third party for those documents sought review of that revised decision. The affected third party submitted to the Commissioner that the documents were exempt under s 47G (business information). Later, but before the Commissioner had made a decision on the reviews, AFMA submitted to the Commissioner that he should decide that the documents were exempt under s 47E (certain operations of agencies). AFMA had not previously applied s 47E in either of its decisions.
The Commissioner rejected the affected third party’s submissions about s 47G. The affected third party applied to the Tribunal for review of that decision, but later withdrew its application. The Commissioner also rejected AFMA’s submissions about s 47E. AFMA applied to the Tribunal for review of that decision. The issue has arisen: does the Tribunal have jurisdiction to review the Commissioner’s decision?
Six questions were agreed between the parties. I answer those questions, and the interlocutory issue: the Tribunal has jurisdiction to review the Commissioner’s decision.
Background
On 29 May 2015, Senator Peter Whish-Wilson applied to AFMA under s 15 of the FOI Act for access to the following:
… all accounts of the deaths of marine mammals, including observer reports, location data, video, and photographs, provided to or prepared by [AFMA] related to the fishing operations of the FV Geelong Star in the Small Pelagic Fishery during the year 2015.
When an FOI request is made for access to a document containing business information (that is, information about the business, commercial or financial affairs of an organisation[1]), the FOI Act requires the relevant agency to consult with the organisation if it appears that the organisation might reasonably wish to make an exemption contention (s 27(1)(b)). The FV Geelong Star is operated by Seafish Tasmania Pty Ltd (Seafish). On 3 July 2015, AFMA wrote to Seafish and invited it to make submissions in support of an exemption contention. Seafish did so on 20 July. Further consultation between AFMA and Seafish occurred on 29 July.
[1] FOI Act, ss 27(1)(a) and 27(2)(b).
On 10 August 2015, AFMA made a decision on Senator Whish-Wilson’s FOI request. It identified 42 documents as falling within the scope of the request. Relevantly, it refused access to ten of those documents (the documents): four documents comprising 115 photographs, and six documents comprising 55 minutes of video footage. AFMA decided that the documents were exempt under s 47 (trade secrets, etc.), s 47F (personal privacy) and s 47G (business information) of the FOI Act. I will call this AFMA’s original decision.
On 2 October 2015, Senator Whish-Wilson applied to the Information Commissioner under s 54L of the FOI Act for IC review of AFMA’s original decision. An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act.[2] Senator Whish-Wilson sought access to the documents, except for the eight photographs that AFMA had decided were exempt under s 47F because they contain personal information.
[2] FOI Act, s 54G. See also [24]–[28] below.
On 5 February 2016, AFMA made what it said was a revised decision under s 55G of the FOI Act. AFMA decided to give Senator Whish-Wilson access to the documents, with the photographs redacted so that no individual could be identified, and with the video footage pixelated or redacted so as not to disclose the design or configuration of the net, or the design of the “seal excluder device”, used on the FV Geelong Star. I will call this AFMA’s revised decision. In accordance with s 55G(2)(b), the Acting Information Commissioner (the Commissioner) then dealt with Senator Whish-Wilson’s application for IC review of AFMA’s original decision as if it were an application for IC review of AFMA’s revised decision.[3]
[3] However, s 55G(2)(b) did not apply: see [36]–[44] and [46]–[47] below.
On 7 March 2016, Seafish applied to the Information Commissioner under s 54M of the FOI Act for IC review of AFMA’s revised decision. Seafish submitted that the documents were exempt under s 37 (enforcement of law), s 47 (trade secrets, etc.), s 47E (certain operations of agencies) and s 47G (business information) of the FOI Act. However, Seafish did not object to Senator Whish-Wilson being given access to some of the documents, provided that they were redacted or pixelated in line with AFMA’s revised decision.
On 11 April 2016, AFMA had what the Commissioner later referred to as “an apparent change of mind”.[4] AFMA submitted to the Commissioner that he “should uphold exemption claims in full over all the photographs and over all the video footage, other than the video footage Seafish has indicated it is content can be released”. This change of mind would appear to be due to AFMA’s staff having encountered technical difficulties pixelating the video footage so that it would not be possible to “unmask” the redacted material. AFMA said that the Commissioner should decide that the documents were exempt for the reasons that it had given for its original decision: s 47 (trade secrets, etc.), s 47F (personal privacy) and s 47G (business information). In addition, AFMA said that the Commissioner should decide that the documents were exempt because of s 47E (certain operations of agencies). AFMA also raised with the Commissioner the question whether it was possible for AFMA to prepare, under s 22 of the FOI Act, an edited copy of the video footage with exempt matter deleted.[5]
[4] Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29 at [12].
[5] Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29 at [12].
On 12 May 2016, Senator Whish-Wilson revised the scope of his request to exclude images of people’s faces and images of the seal excluder device. This meant that he was no longer seeking the material to which AFMA said s 47 (trade secrets, etc.) or s 47F (personal privacy) applied.[6] Accordingly, the Commissioner considered only the exemptions in s 47E (certain operations of agencies) and s 47G (business information), and the application of s 22 (access to edited copies with exempt or irrelevant matter deleted).[7]
[6] Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29 at [11]. The Senator would appear to have already reduced the scope of his request in relation to people’s faces when he made his IC review application on 2 October 2015: see [8] above. Nothing turns on this: he reduced the scope of his request on or before 12 May 2016.
[7] Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29 at [11]–[12]; Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority [2016] AICmr 30 at [10]. The Commissioner does not appear to have considered Seafish’s argument that the documents were exempt under s 37 (enforcement of law): see [10] above. It may be that Seafish did not press that argument. In any event, it was not open to Seafish to contend that the documents were exempt under s 37, for the same reason that Seafish could not make that contention about s 47E: see [14] below, and [2016] AICmr 30 at [32].
On 27 May 2016, the Commissioner purported to affirm AFMA’s revised decision. He published separate reasons in each of the IC reviews: Whish-Wilson and Australian Fisheries Management Authority[8] (which the parties have called the first IC decision) and Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority[9] (the second IC decision).
[8] [2016] AICmr 29.
[9] [2016] AICmr 30.
In his reasons for the first IC decision, the Commissioner explained why he was not satisfied that disclosure of the documents would substantially and adversely affect the operations of AFMA for the purposes of s 47E(d);[10] and why he was satisfied that it would be reasonably practicable for AFMA to prepare edited copies of the video footage for the purposes of s 22.[11] In his reasons for the second IC decision, he explained why he was not satisfied that disclosure of the documents would unreasonably affect Seafish in respect of its lawful business affairs (s 47G);[12] and why it was not open to Seafish to contend that the documents were exempt under s 47E.[13]
[10] [2016] AICmr 29 at [16]–[26].
[11] [2016] AICmr 29 at [27]–[35].
[12] [2016] AICmr 30 at [12]–[23].
[13] [2016] AICmr 30 at [32].
On 10 June 2016, AFMA applied to the Tribunal, under s 57A(1)(a) of the FOI Act, for review of the first IC decision.
On 24 June 2016, Seafish applied to the Tribunal for review of the second IC decision. On 19 December 2016, Seafish withdrew its application for review under s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).[14]
[14] Application 2016/3320.
On 24 January 2017, Senator Whish-Wilson filed a document, setting out questions that had been agreed between him and AFMA. Each party prepared written submissions addressing those questions and, on 2 March 2017, I conducted a hearing to consider those questions.
Decision under review
The decision under review is the first IC decision: the Commissioner’s decision on 27 May 2016 purporting to affirm AFMA’s revised decision of 5 February 2016 to give Senator Whish-Wilson access to the documents, with photographs redacted and video footage pixelated or redacted.
Issues
The interlocutory issue is this: does the Tribunal have jurisdiction to review the first IC decision? AFMA says that the Tribunal has jurisdiction. Senator Whish-Wilson says that it does not. He also says that the Commissioner did not have jurisdiction to make the first IC decision. It follows, he says, that AFMA’s revised decision stands.
The specific questions agreed between the parties are as follows:[15]
A.Was AFMA’s revised decision a decision made under s 55G of the FOI Act?
B.What was the IC reviewable decision for the purposes of the FOI Act?
C.Does the Tribunal have the jurisdiction to review the first IC decision, or to otherwise determine that the documents are exempt under s 47E of the FOI Act (certain operations of agencies)?
D.If the answer to question C is “yes”, does the Tribunal have the power to direct the release of less information than AFMA decided to release in its revised decision?
E.If the answer to question C or question D is “no”, is there any further issue for determination by the Tribunal?
F.If the answer to question C or question D is “yes”, should the Tribunal, as a matter of discretion, entertain AFMA’s request to set aside the Commissioner’s decision in circumstances where his decision affirmed AFMA’s revised decision?
[15] I have reworded the agreed questions for consistency with the background at [5]–[17] above.
Legislative framework
Part III of the FOI Act gives people legally enforceable rights to obtain access to government documents on request. Access is not required to be given to an exempt document, or to a conditionally exempt document if access would be contrary to the public interest. Part IV sets out the circumstances in which a document is exempt or conditionally exempt.
An agency or Minister must make a decision on a request for access to a document.[16] Section 4(1) of the FOI Act provides that “access refusal decision” and “access grant decision” have the meanings given by sections 53A and 53B respectively. Section 53A relevantly provides:
[16] Section 15(5)(b). If the agency or Minister does not make a decision within the specified time, access is deemed to have been refused (s 15AC(3)).
53A What is an access refusal decision?
An access refusal decision is any of the following decisions:
(a) a decision refusing to give access to a document in accordance with a request;
(b) a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates;
(c) a decision purporting to give, in accordance with a request, access to all documents to which the request relates, but not actually giving that access;
…
Section 53B relevantly provides:
53B What is an access grant decision?
(1)An access grant decision is a decision covered by the following table:
Access grant decisions
[17] Section 11A(5) provides: “The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.”
Item
If, in relation to a request for access to a document …
the access grant decision is …
…
2
section 27 (business documents) applies in relation to business information in the document
a decision of an agency or Minister to give access to the document (or an edited copy of the document) because:
(a) the document is neither exempt under section 47, nor conditionally exempt under section 47G; or
(b) if the document is conditionally exempt under section 47G—access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).[17]
…
Section 4(1) provides that “affected third party” has the meaning given by s 53C, which relevantly provides:
53C Internal review—who is an affected third party?
(1)The following table has effect:
Who is an affected third party?
[18] Section 27(1)(b) provides that the “person or organisation concerned” is the person or organisation that, it appears to the agency or minister, might reasonably wish to make an exemption contention: see [6] above.
Item
If, in relation to a request for access to a document …
the affected third party for the document is …
…
2
section 27 (business documents) applies in relation to business information in the document
the person or organisation concerned (within the meaning of section 27).[18]
…
Part VII of the FOI Act provides for review of decisions by the Information Commissioner. Section 4(1) provides that “IC reviewable decision” has the meaning given by s 54K, which provides:
54K Key concepts—what is an IC reviewable decision?
An IC reviewable decision is:
(a) a decision covered by subsection 54L(2) (access refusal decisions); or
(b) a decision covered by subsection 54M(2) (access grant decisions).
Sections 54L and 54M relevantly provide:
54L IC reviewable decisions—access refusal decisions
(1)An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2)This subsection covers the following decisions:
(a) an access refusal decision;
…
(3)The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates.
54M IC reviewable decisions—access grant decisions
(1)An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2)This subsection covers the following decisions:
(a) an access grant decision;
…
(3)The IC review application may be made by, or on behalf of, the following:
(a) in any case—an affected third party for the document in relation to which the decision covered by subsection (2) was made;
…
Division 4 of Part VII of the FOI Act provides for the making of applications for IC review. Division 5 provides that the Information Commissioner may make preliminary inquiries before deciding whether or not to undertake an IC review.
Division 6 of Part VII provides for the procedure in an IC review. Section 55G provides:
55G Procedure in IC review—revocation or variation of access refusal decision
(1)An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original decision) in relation to a request or an application under section 48[19] at any time during an IC review of the access refusal decision if the variation or substitution (the revised decision) would have an effect of:
(a) giving access to a document in accordance with the request; or
(b) relieving the IC review applicant from liability to pay a charge; or
(c) requiring a record of personal information to be amended or annotated in accordance with the application.
(2)If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under subsection (1):
(a) the agency or Minister must, in writing, notify the Information Commissioner as soon as practicable after the agency or Minister makes the variation or substitution; and
(b) the Information Commissioner must deal with the IC review application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision, subject otherwise to this Part.
[19] Section 48 is about applications for amendment or annotation of personal records (see 55G(1)(c)), and is not relevant to this review.
Division 7 of Part VII provides for the Commissioner to make a decision on an IC review. Section 55K relevantly provides:
55K Decision on IC review—decision of Information Commissioner
(1)After undertaking an IC review, the Information Commissioner must make a decision in writing:
(a) affirming the IC reviewable decision; or
(b) varying the IC reviewable decision; or
(c) setting aside the IC reviewable decision and making a decision in substitution for that decision.
(2)For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision.
(3)A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision.
Part VIIA of the FOI Act provides for review of decisions by the Tribunal. Section 57A(1)(a) provides that an application may be made to the Tribunal for review of “a decision of the Information Commissioner under section 55K on an IC review”. Section 58 relevantly provides:
58 Powers of Tribunal
(1)Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
Application of the legislative framework to this review
AFMA’s original decision was an access refusal decision: it was a decision refusing to give access to documents in accordance with Senator Whish-Wilson’s request (s 53A(a)).
The Senator’s application for IC review of AFMA’s original decision was made under s 54L(1): he sought review of an access refusal decision (s 54L(2)(a)), and he was the person who had made the FOI request to which that decision related (s 54L(3)). The Commissioner decided to undertake an IC review, which I will call the first IC review.
AFMA’s revised decision was purportedly made under s 55G. I discuss this below.[20]
[20] See [36]–[44] below.
AFMA’s revised decision was an access grant decision: AFMA had consulted with Seafish in relation to business information in the documents (s 27), and decided to give access to the documents (or edited copies of the documents) because:
·the documents were neither exempt under s 47 (trade secrets, etc.) nor conditionally exempt under s 47G (business information); or
·if the documents were conditionally exempt under s 47G (business information), access to the documents would not, on balance, have been contrary to the public interest (s 53B(1), table item 2).
Seafish’s application for IC review of AFMA’s revised decision was made under s 54M(1): Seafish sought review of an access grant decision (s 54M(2)(a)), and Seafish was an affected third party for the documents (s 54M(3)(a) and s 53C(1), table item 2). The Commissioner decided to undertake an IC review, which I will call the second IC review.
The Commissioner made a decision under s 55K on each of the IC reviews. In each IC review decision he purported to affirm AFMA’s revised decision. I discuss this below.[21]
[21] See [46]–[47] and [59] below.
Question A: Was AFMA’s revised decision a decision made under s 55G?
AFMA’s original decision was to refuse access to the documents. AFMA’s revised decision was to give Senator Whish-Wilson access to edited copies of the documents, with photographs redacted and video footage pixelated or redacted, under s 22 of the FOI Act. AFMA purported to make its revised decision under s 55G.
In Duncan and Secretary, Department of Human Services,[22] I considered a situation where, as in this review, a revised decision was said to have been made under s 55G when the agency decided to give the FOI applicant an edited copy of documents that it had originally decided were exempt. In Duncan, I came to the view that s 55G does not apply in such circumstances unless the revised decision gives access to at least one document in full, in accordance with the request.[23]
[22] (2016) 151 ALD 577.
[23] Duncan and Secretary, Department of Human Services (2016) 151 ALD 577 at 582–583 [26]–[27].
For s 55G to apply, the revised decision must have the effect of “giving access to a document in accordance with the request” (s 55G(1)(a)).[24] If the revised decision gives access to only part of a document then that decision is still an access refusal decision, and for the same reason that the original decision was an access refusal decision: because it is “a decision refusing to give access to a document in accordance with a request” (s 53A(a)). A decision cannot give access to a document in accordance with a request and (simultaneously) refuse access to the same document in accordance with the same request. To give access to part of a document is to give access otherwise than in accordance with the request (unless the request was for only that part of the document).
[24] Section 55G also applies where the revised decision would have the effect of relieving the IC review applicant from liability to pay a charge (s 55G(1)(b)), or requiring a record of personal information to be amended or annotated in accordance with an application under s 48 (s 55G(1)(c)). Neither of those provisions applied in Duncan, and neither applies in this review.
As I pointed out in Duncan, this is a surprising result. The clear intention of s 55G is to allow agencies to release additional information to an applicant for IC review even while the IC review is underway. “But”, I reluctantly concluded, “a decision cannot be varied under s 55G unless the revised decision gives access to a document in full—or at least to every part of the document that has been requested”.[25]
[25] Duncan and Secretary, Department of Human Services (2016) 151 ALD 577 at 583 [28].
The Commissioner considered this issue in Australian Associated Press Pty Ltd and Department of Immigration and Border Protection (AAP),[26] an IC review decision. He disagreed with my interpretation of s 55G for two reasons. Firstly, he said that “[t]here is nothing in s 55G to require that the revised decision no longer be an access refusal decision or to preclude a decision to release further material from a single document.”[27] I respectfully disagree with the Commissioner. Section 55G(1)(a), in its terms, requires that the revised decision give access to a document in accordance with the request. That is the exact opposite of the definition of an access refusal decision in s 53A(a).[28] A decision to release further material (but not all of the requested material) from a document is still an access refusal decision.
[26] [2016] AICmr 25.
[27] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 25 at [18].
[28] “An access refusal decision is … a decision refusing to give access to a document in accordance with a request”. See [38] above.
Secondly, the Commissioner said:
… the definition of ‘document’ under s 4 of the FOI Act relevantly includes ‘any or any part’ of:
·any paper or other material on which there is writing
·a map, plan, drawing or photograph
The definition under s 4 applies to all references to ‘document’ in the FOI Act, unless the contrary intention appears (s 4(1)). Therefore the words ‘giving access to a document in accordance with the request’ under s 55G(1)(a), also mean giving access to any part of a document. That prerequisite for the exercise of the discretion under s 55G(1) may be satisfied by the release of any part of a document.[29]
Reluctantly, I am still of the view that the definition of “document” in s 4(1) of the FOI Act cannot be applied in this way. I think that the provisions of (at least) s 22 exhibit a contrary intention to the Commissioner’s interpretation. Section 22 requires an agency to give an applicant access to an edited copy of an exempt document, with the exempt matter deleted, if reasonably practicable.[30] If the effect of the definition of “document” in s 4(1) were that giving access to part of a requested document would amount to giving access to that document in accordance with the request, there would be no need for s 22.
[29] Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 25 at [19]–[20], footnote omitted.
[30] Section 22 also requires an agency to give an applicant access to an edited copy of a document, with irrelevant matter deleted, if reasonably practicable.
This does not mean that an agency cannot decide, at any time, to give access to part of a document. The FOI Act expressly does not limit any power that an agency has, apart from under the FOI Act, to give access to a document, including an exempt document (s 3A). But, if an agency gives access to only part of a requested document, s 55G does not apply, which means that the decision under IC review does not change. This presents obvious practical difficulties: the Information Commissioner would be reviewing an obsolete decision.
In Duncan, s 55G applied because each of the three revised decisions in that case gave access to at least one document in accordance with the request.[31] Similarly, on my interpretation, s 55G can only apply to AFMA’s revised decision if the effect of that decision was to give Senator Whish-Wilson access in full to one or more of the documents in accordance with his request. From the material before me, it seems likely that the effect of AFMA’s revised decision was that at least part of each of the ten documents would be pixelated or redacted. On that basis, s 55G did not apply to AFMA’s revised decision: that decision did not give the Senator access to any of the documents in accordance with his request.
[31] Duncan and Secretary, Department of Human Services (2016) 151 ALD 577 at 584 [34].
Question A is this: was AFMA’s revised decision a decision made under s 55G of the FOI Act? Senator Whish-Wilson says that it was, for the same reasons that the Commissioner gave in AAP. AFMA says that I do not need to answer question A. AFMA says that s 55G “concerns the operation of agencies in the course of an IC review”. As the relevant IC review (the first IC review) is complete, AFMA says, there is no need to consider the operation of s 55G. I agree, but for a different reason. As I explain below,[32] my answer to the interlocutory issue in this review (about the Tribunal’s jurisdiction) would be the same regardless of my answer to question A. However, for the reasons I have given above, AFMA’s revised decision was not a “revised decision” for the purposes of s 55G of the FOI Act.
[32] See [50]–[54] below.
Question B: What was the IC reviewable decision?
As explained above,[33] Senator Whish-Wilson’s application for IC review was made under s 54L(1), and Seafish’s application for IC review was made under s 54M(1). So, because of s 54K:
·the IC reviewable decision in the first IC review was the access refusal decision covered by s 54L(2): that is, AFMA’s original decision; and
·the IC reviewable decision in the second IC review was the access grant decision covered by s 54M(2): that is, AFMA’s revised decision.
[33] See [31] and [34] above.
In each of the first and second IC review decisions, the Commissioner purported to affirm AFMA’s revised decision.[34] Obviously, in the first IC review, this was because AFMA’s revised decision was made after Senator Whish-Wilson applied for IC review. The Commissioner was, in accordance with s 55G(2)(b), dealing with the Senator’s application for review of AFMA’s original decision as if it were an application for review of AFMA’s revised decision.
[34] Whish-Wilson and Australian Fisheries Management Authority [2016] AICmr 29 at [1]; Seafish Tasmania Pty Ltd and Australian Fisheries Management Authority [2016] AICmr 30 at [1].
But, s 55G(2)(b) did not apply in the first IC review, because AFMA’s revised decision was not a “revised decision” for the purposes of s 55G of the FOI Act.[35] That means that the IC reviewable decision in the first IC review remained AFMA’s original decision.
[35] See [36]–[44] above.
Question B is this: what was the IC reviewable decision for the purposes of the FOI Act? Senator Whish-Wilson says that, because of the application of s 55G, the IC reviewable decision was “the access refusal part” of AFMA’s revised decision. AFMA says that I do not need to answer question B. AFMA says that “[i]t is sufficient that the right of appeal to the Tribunal has been enlivened, and must now be exercised in accordance with the terms of the FOI Act and the AAT Act”. I agree but, again, for a different reason. As I explain below,[36] my answer to the interlocutory issue in this review (about the Tribunal’s jurisdiction) would be the same regardless of my answer to question B. However, for the reasons I have given above, the IC reviewable decision was AFMA’s original decision.
Question C: Does the Tribunal have the jurisdiction to review the first IC decision, or to decide that the documents are exempt under s 47E?
[36] See [50]–[54] below.
The decision under review is the first IC decision. Senator Whish-Wilson says that the Tribunal does not have the jurisdiction to review the first IC decision. He says that “AFMA’s application to the Tribunal suffers from the same jurisdictional defect as its argument before the [Commissioner]”, that is:
During Senator Whish-Wilson’s IC review [the first IC review], but after the revised decision had been made, AFMA sought to have the [Commissioner] vary the access grant decision [AFMA’s revised decision], by arguing that the documents that were the subject of the access grant decision were, in fact, exempt. It did not, and could not by virtue of the operation of section 55G, formally revise its access grant decision: section 55G is confined to “access refusal decisions”. Instead, it (impermissibly) sought to have the [Commissioner] review that decision, but in an IC review that was not concerned with the access grant decision.
Senator Whish-Wilson points to the following chain of events: AFMA made its original decision (refusing access); the Senator sought IC review; AFMA made its revised decision (granting access); AFMA changed its mind, and wanted to apply the exemption in s 47E (certain operations of agencies); but AFMA couldn’t change its decision itself (because the Commissioner was undertaking the IC review), so it asked the Commissioner to change the decision; the Commissioner considered AFMA’s submissions about s 47E, but rejected them. Senator Whish-Wilson says that the Commissioner should not have considered those submissions, because it was not open to him to decide that s 47E applied. Similarly, the Senator says, it is also not open to the Tribunal to decide that s 47E applied. He says that the Tribunal (like the Commissioner) cannot decide to refuse access to documents to which access has been granted, so there is no part of the first IC decision that the Tribunal can review.
As noted above,[37] Senator Whish-Wilson says that the IC reviewable decision was “the access refusal part” of AFMA’s revised decision. I have decided that the IC reviewable decision was AFMA’s original decision. But, even if the IC reviewable decision was AFMA’s revised decision, Senator Whish-Wilson’s argument on this point is misconceived. It is open to the Tribunal on review (as it is open to the Information Commissioner on IC review) to refuse access to documents to which access has been granted.
[37] See [48] above.
Section 55K(2) of the FOI Act provides that, “[f]or the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision”. There is only one exception to this: the Commissioner cannot, having decided that a document is exempt, decide to give access to that document (s 55L); an agency or a Minister can (s 3A).[38] Because the Commissioner performs the functions, and exercises the powers, of the person who made the IC reviewable decision, it does not matter whether the decision under review is an access refusal decision, an access grant decision, or both.
[38] See also [42] above. Furthermore, s 55G does not apply to the Information Commissioner. It allows agencies to release additional information to an applicant for IC review even while the IC review is underway, and for the decision under review to be revised. But it applies only “during an IC review of [an] access refusal decision”. It does not restrict the Commissioner in making a decision on the IC review under s 55K.
So, in making a decision on the first IC review, it was open to the Commissioner to decide that documents which AFMA had decided were not exempt were, in fact, exempt. His functions and powers on IC review were not affected by whether he was reviewing AFMA’s original decision or AFMA’s revised decision: he had the same functions and powers that AFMA had.
The powers of the Tribunal on review are analogous to those of the Information Commissioner on IC review. Section 58(1) of the FOI Act provides that, “in proceedings under this Part [Part VIIA, about review by the Tribunal], the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister”. There is only one exception to this: the Tribunal cannot, having decided that a document is exempt, decide to give access to that document (s 58(2)). Because the Tribunal has power to review any decision made in respect of the request, and to make any decision that could have been made in relation to the request, it does not matter whether the decision under review is an access refusal decision, an access grant decision, or both.
So, in making a decision on this review, it is open to the Tribunal to decide that documents which AFMA has decided are not exempt are, in fact, exempt. The Tribunal’s functions and powers on review are not affected by whether it is reviewing AFMA’s original decision or AFMA’s revised decision: the Tribunal has the same functions and powers that AFMA had in relation to Senator Whish-Wilson’s request.
Given what has been described as the “pro-disclosure principle declared in the objects of the FOI Act”,[39] it would be a rare occurrence for the Information Commissioner or the Tribunal, on review, to refuse access to documents to which an agency or a Minister had granted access. But, such a decision might be made if the circumstances had changed since the decision under review was made. Or the Commissioner or the Tribunal might take different view, than did the agency or Minister, about an exemption contention made by an affected third party.
[39] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016) at [6.8]. The objects of the FOI Act are set out in ss 3 and 3A.
Question C is this: does the Tribunal have the jurisdiction to review the first IC decision, or to otherwise determine that the documents are exempt under s 47E of the FOI Act? The answer is “yes”. The Tribunal has the jurisdiction to review the first IC decision. In doing so, it is open to the Tribunal to decide that the documents are exempt under s 47E.
Question D: Does the Tribunal have the power to give access to fewer documents than AFMA did?
Question D is this: if the answer to question C is “yes”, does the Tribunal have the power to direct the release of less information than AFMA decided to release in its revised decision? The answer to question C is “yes”. But, because the IC reviewable decision was AFMA’s original decision, not its revised decision, it is not strictly necessary for me to answer question D. However, for the reasons I have given in my answer to question C, it is clear that the Tribunal does have the power to give access to fewer documents than AFMA did in its revised decision.
Question E: Is there any further issue for determination by the Tribunal?
Question E is this: if the answer to question C or question D is “no”, is there any further issue for determination by the Tribunal? The answer to neither question C nor D is “no”, so it is not necessary for me to answer question E. However, for the reasons I have given in my answer to question C, it is clear that there are further issues for determination because the Tribunal has the same functions and powers that AFMA had in relation to Senator Whish-Wilson’s request.
Question F: Should the Tribunal entertain AFMA’s request to set aside the Commissioner’s decision to affirm AFMA’s revised decision?
In each IC review decision, including the first IC review decision (the decision under review), the Commissioner purported to affirm AFMA’s revised decision. As I have explained above,[40] the IC reviewable decision was AFMA’s original decision, not its revised decision. So, the effect of the Commissioner’s purported decision to affirm AFMA’s revised decision (under s 55K(1)(a)) was to set aside AFMA’s original decision and make a decision (to the same effect as AFMA’s revised decision) in substitution (under s 55K(1)(c)).
[40] See [45]–[48] above.
Question F is this: if the answer to question C or question D is “yes”, should the Tribunal, as a matter of discretion, entertain AFMA’s request to set aside the Commissioner’s decision in circumstances where his decision affirmed AFMA’s revised decision. Because the IC reviewable decision was AFMA’s original decision, not its revised decision, and because the answer to neither question C nor D is “no”, it is not strictly necessary for me to answer question F. However, for the reasons I have given in my answer to question C, it is open to the Tribunal to set aside the decision under review. Whether it should do so depends on what is the correct or preferable decision.
Conclusion
The Tribunal has jurisdiction to review the decision under review: the Commissioner’s decision on 27 May 2016 (the first IC decision), which purported to affirm AFMA’s revised decision but in effect set aside AFMA’s original decision and made a decision (to the same effect as AFMA’s revised decision) in substitution.
The answers to the specific questions agreed between the parties are as follows:
A.Not necessary to answer—however, AFMA’s revised decision was not a “revised decision” for the purposes of s 55G of the FOI Act.
B.Not necessary to answer—however, the IC reviewable decision was AFMA’s original decision.
C.The Tribunal has the jurisdiction to review the first IC decision. In doing so, it is open to the Tribunal to decide that the documents are exempt under s 47E of the FOI Act (certain operations of agencies).
D.Not necessary to answer—however, the Tribunal does have the power to give access to fewer documents than AFMA did in its revised decision.
E.Not necessary to answer—however, there are further issues for determination by the Tribunal.
F.Not necessary to answer—however, it is open to the Tribunal to set aside the decision under review.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple
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Associate
Dated: 24 March 2017
Date of hearing: 2 March 2017 Counsel for the Applicant: Ms Elizabeth Bennett Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondent: Ms Juliet Forsyth Solicitors for the Respondent: Bleyer Lawyers
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