Australian Privacy Foundation and Attorney General's Department

[2005] AATA 1204

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1204

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/747

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AUSTRALIAN PRIVACY FOUNDATION

Applicant

And ATTORNEY GENERAL’S DEPARTMENT

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date6 December 2005

PlaceSydney

Decision The reviewable decision is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

FREEDOM OF INFORMATION – processing fee charged – application to have the fee waived – issues of financial hardship and general public interest - financial hardship not established – decision affirmed

LEGISLATION
Freedom of Information Act 1982 ss 3, 11, 29(5), 36, 61

CASELAW

State of Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25
Hinch v Attorney-General (1987) 164 CLR 15
Nationwide News v Wills (1992) 177 CLR 1
ACTV Pty Limited v Commonwealth (1992) 177 CLR 106
Theophanous v Herald & Weekly Times Limited (1994) 182 CLR 104
Re Bailey and Commonwealth Tertiary Education Commission AATA 3078, 8 December 1986
Lange v Australian Broadcasting Authority (1997) 189 CLR 520
Coleman v Power (2004) 78 ALJR 1166.
Esso Australia Resources Limited and Ors v Plowman & Ors (1995) 183 CLR 10
British Steel Corporation v Granada Television Ltd  (1981) AC 1096
Herald and Weekly Times and Secretary, Department of Finance and Administration [2000] AATA 506.

REASONS FOR DECISION

6 December 2005 Senior Member, Mrs Josephine Kelly     

Introduction

1.      The Australian Privacy Foundation (“the APF) seeks waiver of a processing fee of $160 for a request made to the Attorney-General’s Department (the Department) pursuant to the Freedom of Information Act 1982 (“the Act”), s 29(5).

2.      The request dated 27 September 2004 was for access to:

“submissions made by interested parties in relation to the Anti-Money Laundering Reform process currently being undertaken by a unit located within your Department … we also seek any records of consultations undertaken as part of the Reform process … Initially, we seek only a list of submissions/meetings, from which we would then select those for which we would like to see the substantive content”. (T3)

3.      The letter also sought the remission of all fees on the basis that “the giving of access is in the general public interest”.

4.      The Department waived the $30 application fee for the request in an internal review (letter dated 9 December 2004, T8).

5.      After further correspondence, the request was recast. As considered by the primary  decision-maker (T4), the request was for documents:

·(Beyond the list of formal submissions), substantive letters or files notes outlining the views of public or private sector organisations which have been consulted by or with the Review Teams since the formal commencement of the Anti-Money Laundering Review.

·Substantive attachments to emails.

6.      Based on the amended request, that decision-maker determined that the processing would involve a search of approximately 18 Departmental hard copy files and 4 notebooks containing records of conversations with public/ private sector bodies. The APF had not asked for notebooks but the decision-maker considered some of the information they contained fell within the request..

7.      The decision-maker also estimated a processing fee of $160 would be charged and a deposit of 25% or $40 required (T4). The processing fee was assessed as follows:

·Search and retrieval time: 4 hours @ $15 per hour - $60.00

·Decision-making time: 5 hours @ $20 per hour - $100.00

8.      The APF sought an internal review in a letter dated 8 March 2005 (T15). On 14 April 2005 the internal reviewer, who had not made any of the earlier decisions, affirmed the decision (T1.4 to T1.8). In the same letter, the $40 fee for that internal review was waived (paragraphs 12 and 32). It is also apparent from that letter that the $40 fee for the earlier internal review had also been waived (paragraph 32). 

9.      For the reasons that follow I affirm the decision under review.

The Issues

10.     The issue in these proceedings is whether the processing fee should be reduced or not imposed. The arguments focused on:

· Whether the payment of the charge, or part of it, would cause financial hardship to the Foundation (s 29(5)(a) of the Act);

·     Whether the giving of access to the documents requested “is in the general public interest” or “in the interest of a substantial section of the public” within the proper construction of s 29(5)(b) of the Act”

The Foundation

11.     The evidence about the Foundation included an affidavit from Mr Nigel Waters, the Public Officer of the Foundation which attached the Rules of Incorporation (Ex A2); the Association’s Financial Statements and a Statement by the Board for the year ended 30 June 2004 (Ex A1); a print-out from the Foundation’s web-site (Ex A3), and material in correspondence from the Foundation to the Department in the “T” documents. Mr Waters was not cross-examined, and no evidence was tendered by the Department to contradict the above evidence.

12.     The Financial Statement includes the years 2004 and 2003 is summarised in the following tables.

Statement of Income and Expenditure

2004	2003
Membership Income
- Annual	305.00	300.00
- Life	220.00	165.00
TOTAL INCOME	560.86	5,565.29
TOTAL EXPRENDITURE	1,172.30	177.00
SURPLUS / (DEFICIT)	($611.44)	$5,388.29

Note 2 – Deferral of Life Membership Income – The Board has adopted a policy of allocating life membership over a period of 5 years. there were 3 new Life Members in 2003 and 1 in 2004.

Balance Sheet

2004	2003
NET ASSETS	$7,185.89	$7.797.33
Members’ Equity
- Brought Forward from Prior Years	7,797.33	2,409.04
- Current Year Surplus/ (Deficit)	($611.44)	5,388.29
TOTAL MEMBER’S EQUITY	$7,185.89	$7.797.33

13.     I do not know how many members the Foundation has. I do not know what its present financial situation is apart from Mr Waters’ opinion that its bank balance is “modest” and his assertion that it “is quickly being consumed in running costs”. . 

14.     The following is a summary of the Foundation’s various activities as disclosed by the material from its website. For 2001 the APF lists 9 papers on the website. They include submissions to the Internet Industry Association and to Parliamentary inquiries. In 2002 it placed 20 documents on the website, and in 2003 15 papers. In 2002 the documents were largely submissions made, including to various Privacy Commissioners and to the Department. In 2003 submissions were again made to the Office of the Federal Privacy Commissioner and letters were written to various organisations including the NSW Liberal Party, the NSW Electoral Commissioner, and Standards Australia.

15.     The lists for 2004 and 2005 include 32 and 41 documents respectively. The included submissions and letters, and a variety of commentaries and proposals, and an article that was published by the Sydney Morning Herald. The Foundation’s level of activity has apparently increased significantly since 2000. 

Consideration

16.     I find that the Foundation is a not-for-profit non-governmental organisation which has operated since 1987, first as an unincorporated association, and since 2002 as an incorporated association. Its aims and objectives are primarily are to protect the privacy rights of Australians through various strategies. It operates on a limited budget and entirely volunteer effort. It has no premises, paid staff or assets apart from what Mr Waters described as a modest bank balance. 

Legislation

17. The objects of the Act are set out in s 3 (1) (a) and (b) and (2):

Object

(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

…

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

18. Section 11 provided a legally enforceable right to obtain access subject to exemptions.

19. Section 29 of the Act applies to a charge to an applicant other than an application fee.

20.     Section 29(5) of the Act provides:

(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.

21. It was accepted by both parties that s 29 confers a discretion on the decision-maker. When exercising the discretion whether to impose a charge, the decision-maker must take into account the matters set out in s 29(5)(a) and (b), but may also take into account other matters.

22.     Section 61 relevantly provides that there is an “onus” on the Department to establish that the decision was justified and that I should make a decision adverse to the Foundation. This was not disputed by the Department.

Consideration

Financial Hardship

23.     I am not persuaded that the imposition of the processing charge of $160 would cause the APF financial hardship. The charge will be paid in two parts, a deposit of $40 and the balance upon finalisation of the request (T4.1). The APF’s annual income from annual and life membership is modest. However the net assets in 2004 and 2003 exceeded $7,000. That was despite an increase in expenditure of nearly $1,000 to $1,172.30 in 2004. The amount of the proposed charge is small compared to the total assets in the evidence before me.

The Public Interest

24.     Is the giving of access to the documents in question in the “general public interest” or in “the interest of a substantial section of the public”? There is no definition in the act of “public interest”, nor of the above italicised terms used in s 29(5)(b) The parties had different views about what that provision means. Following is a summary of those views.

25.     The Department argued that s 29(5)(b) has a much wider ambit than “the public interest” in s 36 of the Act, because of the use of the terms I have italicised. The “bar” was higher because the provision relates to the discretion to waive a charge, and Government policy has always been that such charges should be imposed wherever possible. It followed that before the APF became entitled to a waiver of charges, I must be satisfied that:

·     The release of the documents would be in the interests of “a significant number of people, a large class of persons” to satisfy either term in the provision.  

·     The release must leave the particular category of people in an improved or more advantageous position. 

·     It followed that I had to be satisfied that the documents could and would be brought to the notice of the general public or substantial section of the public.

26.     The Department argued that in this case there was no evidence that the release of the documents would be in the general public interest or the interest of a substantial section of the public. There was also no evidence that the APF would or could bring the documents to the notice of the general public or of a substantial section of the public. Finally, even if the documents were brought to the notice of a relevant category of people it is not clear how that could be of real, significant and identifiable benefit to that group. The Department relied on British Steel Corporation v Granada Television Ltd (1981) AC 1096 and Justice O’Connor’s decision in Herald and Weekly Times and Secretary, Department of Finance and Administration [2000] AATA 506.

27.     Mr Rares, SC, who appeared for the APF argued that the Department’s approach was inconsistent with the High Court’s identification of the importance of access to information to ensure freedom of discussion and speech. Cases referred to included various factual and legal contexts. The cases were State of Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25, Hinch v Attorney-General (1987) 164 CLR 1, Nationwide News v Wills (1992) 177 CLR 1, ACTV Pty Limited v Commonwealth (1992) 177 CLR 106, Theophanous v Herald & Weekly Times Limited (1994) 182 CLR 104, Re Bailey and Commonwealth Tertiary Education Commission AATA 3078, Lange v Australian Broadcasting Authority (1997) 189 CLR 520 and Coleman v Power (2004) 78 ALJR 1166.

28.     The argument was directed principally to a general policy or principle that refusal to waive a fee to a not for profit organisation whose objects were consistent with the implied constitutional freedom of freedom of communication on matters of government and politics is by “parity of reasoning” “both a burden and neither reasonable nor appropriate in the circumstances”.  

29.     Mr Rares pointed out that in Esso Australia Resources Limited and Ors v Plowman & Ors ((1995) 183 CLR 10 at 32) the High Court refused to follow the British Steel Corporation Case on the narrow construction it gave to “the public interest”. The final matter he relied on was that the Department’s position was contrary to the New FOI Memorandum No. 29 Fees and Charges (November 1992), paragraphs 89 to 92. In summary, his case was that the criteria set out in s 29(5)(b) were satisfied because the giving of access to the documents to the APF would assist it to participate in public debate and the formulation of policy in the area of money-laundering.

30.     The Department advised during the hearing that a draft bill will be released shortly and a period of four months of public consultation and comment will follow. It was not in dispute the APF could participate and contribute to that debate during that period.

31.     It is unnecessary for me to determine this construction question. If I assume in favour of the APF that its access to the documents satisfies s 29(5)(b), I am still not persuaded that the processing charge should be reduced or not imposed in the circumstances of this case. I have determined that the charge with which I am concerned is not going to cause the APF financial hardship. There was no evidence that if the charge was imposed the APF would not proceed with the application. It is appropriate that the processing fee be charged.

Conclusion

32.     I affirm the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  28 November 2005
Date of Decision  6 December 2005
Counsel for the Applicant         Mr S. Rares SC and Ms K. Morgan
Solicitor for the Respondent     Attorney General’s Department