Chen v University of NSW

[2010] NSWADT 304

CITATION:	Chen v University of NSW [2010] NSWADT 304
DIVISION:	General Division
PARTIES:	APPLICANT Juchuan Chen RESPONDENT University of New South Wales
FILE NUMBER:	053403
HEARING DATES:	17 September 2010
SUBMISSIONS CLOSED:	22 October 2010
DATE OF DECISION:	21 December 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Imposition of charges for dealing with applications under the Freedom of Information Act 1989 and granting access to documents. Principles applicable when considering an application for charges payable pursuant to Freedom of Information Act 1989, s.24 - Freedom of Information (Fees and Charges) Order 1989, clause 5. Power of Tribunal at the conclusion of proceedings to impose charges under s.24 Freedom of Information Act 1989.
LEGISLATION CITED:	Freedom of Information Act 1989, s.24 Freedom of Information (Fees and Charges) Order 1989, clause 5.
CASES CITED:	Chen v University of New South Wales (No. 4) [2009] NSWADT 320 Chen v University of New South Wales (No. 3) [2009] NSWADT 305 Chen v University of New South Wales [2008] NSWADT 244
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton,barrister
ORDERS:	1. No charges should be imposed pursuant to s.24 Freedom of Information Act 1989 with respect to dealing with the applicant’s application and granting access in accordance with the Tribunal’s earlier orders 2. The respondent’s application for the imposition of such charges, and ancillary orders, is dismissed 3. The respondent’s application for leave to approach the Tribunal for further orders is refused.

REASONS FOR DECISION

1 On 21 December 2009 the Tribunal formally determined an application, brought by the applicant under the Freedom of Information Act 1989, granting access to several documents held by the respondent. On this date the Tribunal made formal orders. The documents involved concerned investigations that the respondent had undertaken following allegations commenced by disclosures under the Protected Disclosures Act 1994. Access was granted to the subject documents, which fell into 8 discrete categories, subject to specific redactions (Chen v University of New South Wales (No. 4) [2009] NSWADT 320). The substantive decision, setting out the Tribunal’s reasons for granting access, was delivered on 08 December 2009 (Chen v University of New South Wales (No. 3) [2009] NSWADT 305; see also Chen v University of New South Wales [2008] NSWADT 244).

2 The respondent has now sought further orders concerning the payment of charges which, it submits, will be involved in providing the applicant with access to some of the documents to which he has been granted access. In substance the respondent seeks an order that the applicant pay charges amounting to $13,145-00, a sum comprising costs of $11,950 together with an appropriate GST amount. This taxation component comes about by reason of the fact that the respondent proposes to engage its lawyers, rather than to employ its own staff, to undertake the administrative task of redacting the particular documents in issue. Ancillary orders are also sought by the respondent. Of the 8 categories of documents the subject of the Tribunal’s earlier decisions, only some 2000 folios are involved in giving rise to this application now before the Tribunal. This is, of course, still a significant amount of documents.

3 For the purposes of this application the respondent relies upon the affidavit of Deborah Gibson sworn 15.09.10, its outline of issues dated 14.07.10 and its written submissions dated 01.10.10 and 22.10.10. The applicant relies upon his written submissions dated 14.10.10. Both parties also rely upon their oral submissions at hearing on 17.09.10.

4 Ms Gibson’s affidavit sets out the material circumstances. They are as follows. The respondent does not have copies of the subject documents in an electronic form that permits electronic searching (paragraph 13). Therefore, the proposal is that, with respect to some 2000 documents (single folios), the respondent intends, of its own volition, to engage its solicitor, who has had prior familiarity with these documents, to peruse and redact them in accordance with the Tribunal’s orders on 21.12.09 (paragraphs 10, 11 and 14 of Ms Gibson’s affidavit). This will involve work by both a paralegal and by a lawyer, both employed by the solicitor, and will cost $ 11,950-00 plus an additional GST component, the total amounting to $13,145-00. This is the sum that the lawyers will charge the respondent for doing the requested work to give effect to the Tribunal’s formal orders. The task involved may not actually require a full perusal of each of these folios as, at an earlier point in time, they were made available to the public, with certain, but different, redactions. Consequently, all that may in fact be required is to review the earlier redactions (paragraph 11). Whilst this may be so, it may well eventuate that each of these folios will have to be perused in full to ensure compliance with the Tribunal’s orders and, in any event, a considerable amount of work is clearly involved. The respondent does not have adequate staff itself to undertake this work (paragraph 15). Further, the respondent does not have an allocation in its budget allocated to the cost that its lawyer will charge (paragraphs 15, 16 and 18). These facts are not in contention.

5 The initial step is to consider the legislation that may have application here. The Freedom of Information Act 1989, although now repealed, still applies to these proceedings pursuant to cl.3 of Sch 3 to the Government Information (Public Access) Act 2009. This Act provides that an agency, after considering an application for access, shall determine whether access is to be given or refused (s.24(1)(a)). If access is to be given, the agency is to then determine any charge payable in respect of the giving of access (s.24(1)(b)), and, any charge payable for dealing with the application (s.24(1)(c). The respondent relies upon these provisions in the present application. In essence, the respondent’s argument is based on the premise that the Tribunal has not yet finally determined the proceedings, so that it is not functus officio. This is no doubt correct: prior to making formal orders the respondent reserved its position with respect to charges payable and, when making formal orders, the Tribunal granted liberty to the parties to apply upon notice for the purpose of considering any issues that may arise in giving effect to the Tribunal’s decision (Chen v University of New South Wales (No. 4) op cit). The respondent’s argument is also based upon the premise that the Tribunal is now the proper decision maker with respect to any determination pursuant to s.24 of the Act by reason of s.63(2) of the Administrative Decisions Tribunal Act 1977. This premise requires examination. However, at present the Tribunal will assume that it is empowered to determine the application that the respondent has now brought.

6 Clause 5 of the Freedom of Information (Fees and Charges) Order 1989 contains provisions directing the exercise of the s.24 powers. Any charges determined under s.24(1)(b) or s.24(1)(c) of the Act are to be calculated on the basis of $30-00 per hour (O5(1)(a) and (b)). Such charges are to be calculated on the time spent by the agency’s staff in actually dealing with the application or giving access to the documents, calculated to the nearest one quarter hour (O5 (3)). Further, O5(2)(b) relevantly provides that no charge is to be imposed in respect of any application under s.34 of the Act. Section 34 of the Act entitles a person who is aggrieved by the initial decision of an agency to apply for internal review. Also of possible relevance are the provisions of O6 (e) which provide that charges are halved where an application relates to information that it is in the public interest to make available.

7 It should be noted that the respondent’s present application concerns the imposition of charges under s.24 of the Act: it is not based on any of the provisions of the Act which relate to application fees nor the imposition of advance deposits. The provisions of the Act dealing with application fees and advance deposits are different to those dealing with charges, and are not relied upon here.

8 The orders sought by the respondent are set out in paragraph 8 of its submissions, varied to some extent as set forth in paragraph 26. The essential order sought is that a charge in the sum of $13,145-00 be imposed together with ancillary orders to meet the possibility that the work involved in providing access should be either more or less than that anticipated at present as well as the possibility that other persons may actually pay part of those same costs. Leave to apply further is also sought. It is argued that a charge to cover the cost of redacting the subject documents is either a charge in respect of giving access, and therefore within s.24(1)(b), or, alternatively, is a charge payable for dealing with the application, and therefore within s.24(1)(c) (see submissions paragraph 9). No doubt this submission is correct ex facie, but it does require a closer examination in the circumstances of this case. Further, the respondent submits that the power to impose charges under s.24 is discretionary (paragraph 10). Although there was no detailed argument on this point, this submission should also be accepted: whilst a determination under s.24 as to whether access is to be given or refused is mandatory, the use of the words any charge payable carry with them the implication that it is open to the agency to impose no charge at all. This is the preferable construction.

9 The respondent then submits that the cost of providing the documents pursuant to the Tribunal’s orders, given its sum, should be justified on some basis, as it is a significant expenditure and is one that is unusual and not in the ordinary course (paragraphs 12 and 13). It is then argued that the applicant is actually of the view that the documents are worthless, as his correspondence evidences, and therefore such an expenditure from the respondent’s funds cannot be justified (paragraphs 13 and following). However, this is not quite what the applicant has said in his submissions: what he means is that the documents have no monetary worth to him. However the value of the documents to him is not in money terms but, as he clearly maintains in his letters in evidence, is based upon the public interest in having a readable version of the documents publicly available (see his submissions dated 14.10.10). The respondent disputes this public interest aspect and argues that there is no public interest in requiring the public to incur great expense to satisfy the passing or mild curiosity of a small number of persons (paragraph 18). It is appropriate therefore, the respondent argues, that a person who is interested in the documents should bear the expense of making them available (paragraph 19).

10 The applicant’s submissions, summarily, are as follows. The fact that the respondent does not have adequate staff to deal with the redaction process is not a valid reason for not complying with the Tribunal’s orders. The redaction process is straightforward. The handling of the investigation process by the respondent has been reported internationally and is still of interest. A large sum of money was spent by the respondent in investigating the allegations that were made and the charges now sought by the respondent are insignificant in comparison. There is a cost effective method available to the respondent by way of placing copies of the subject documents, redacted as the Tribunal has ordered, in the respondent’s library so that an interested person may copy the pages of interest, rather than the entire documents. In substance, the common thread running through the applicant’s submissions is the public interest in making the documents readily available as public records and he argues that he alone should not bear the cost of achieving this result. In making these submissions, the applicant is not inviting the Tribunal, when determining whether charges should be imposed, to embark upon an exercise of balancing competing public interests. He is simply arguing that, in the circumstances of this matter, the public interest in making these particular documents available, to an applicant under the Act, is a relevant consideration that ought to be taken into account.

11 In its submissions in reply the respondent comments on the points made by the applicant. Essentially, the respondent, by these submissions, points out that the applicant’s submissions are misconceived, irrelevant or unsupported by evidence and submits that he has no real interest in the documents or, at least, should be required to pay the charges so as to substantiate his interest in them. In particular, the respondent submits that the public interest consideration relied upon by the applicant is in fact irrelevant to the exercise of the power to impose charges pursuant to s.24 of the Act. The particular arguments proposed by the parties must, of course, be addressed, however this must be done without losing sight of the general, in the sense of broad, discretionary power to impose charges which the section confers. When exercising this power the Tribunal is required, inter alia, to take into account all relevant considerations, as well as to exclude all irrelevant considerations.

12 The submissions filed and argued by the parties have focused on the merits question involved in the discretionary exercise of the s.24 power to impose charges and have been put as if this was the only issue involved here. Clearly it is a point that the parties wish resolved and, therefore it would be remiss not to address it. Given this approach by the parties it is the first aspect that should be decided, although, as will appear later, it is not the only issue in the case.

13 It is clear from the legislation that an agency itself, should it decide to grant access, may impose charges, pursuant to s.24 of the Act, for dealing with an initial application pursuant to s.24, and for giving access to the documents sought, at that early stage of the process. These two limbs of the power combine in a way that makes the power very broad. For the purpose of deciding the merits of the competing arguments by the parties, it is assumed, as noted above, that s.24 has present application and that the Tribunal, when hearing an application for review under the Act, is empowered to exercise the powers conferred by s.24 of the Act. The essential merits question, other things being equal, then becomes whether, given the relevant fact that the respondent will incur a significant expense in redacting and giving access to the documents, which itself, the respondent submits, gives rise to a public interest consideration, and the fact that the Act confers power to impose related charges, such charges ought to be now levied. This involves considering whether there are reasons or considerations, including any relevant factual matters or public interest considerations, why, in the exercise of these discretionary powers, such charges should, or should not, be imposed, or, if imposed, should be imposed in full or should be reduced in quantum to some extent. Of course, as the powers under s.24 are discretionary, any consideration relevant to the exercise of the powers must be taken into account, whether it be a matter of public interest, a policy consideration or a point of fact.

14 The material factual matters have been set out above. The Tribunal has earlier in these proceedings considered the circumstances and public interest considerations that are in play (Chen v University of New South Wales (No.3) op cit). One such matter was the public interest in ensuring that the respondent’s investigations were not only in fact properly and fairly conducted but are seen to be so. This public interest, if presently relevant to the imposition of charges, must be given great weight in the circumstances giving rise to the creation of the documents in question. These circumstances have been fully set out in the Tribunal’s earlier reasons for decision cited above. Clearly, this public interest consideration is relevant to the question whether access should be granted to the documents in question. However, is it also relevant to present question concerning the imposition of charges? The respondent argues that it is not, as the question now is who should pay for the work involved in preparing the documents and in giving access to them (submissions in reply paragraph 2). The question of access, the respondent argues, has already been decided and therefore this public interest consideration has fallen away, or has been exhausted.

15 However, for the reasons that follow, this public interest consideration is indeed relevant to the exercise of the discretionary power conferred by s.24 of the Act, although it is not, as noted above, the only consideration to be taken into account. It becomes relevant in the following way. As a matter of good administration, any public body which conducts investigations into a matter of public interest may produce reports which it may decide to make publicly available. It may impose charges for providing, for example, bound copies of any such report, to defray expenses, but it may equally decide that it may provide copies, in one form or another, free of charge to any member of the public who should wish to read the report. The course in fact adopted may well depend upon the public significance of the report and what it contains. Equally, where an applicant obtains access to documents upon initial application pursuant to the Act an agency, on the assumptions noted above, is entitled to impose the charges which s.24 permits, should it wish to do so. It may decline to impose charges, or it may reduce the amount of charges payable, for any reason it considers appropriate, the discretion being unfettered by the words of the section, provided that the reason for so deciding is based upon considerations that are relevant to the exercise of the power. In the present type of case an agency may well ask itself the question whether the findings, documents and reports concerning the investigations that it undertook should be made publicly available, either wholly or in part, upon the completion of the process, of the agency’s own volition and at its own cost. Clearly the respondent was so minded in this case as it did make the documents publicly available, albeit with different redactions. The point here though is that the circumstances and the nature of the documents and reports may clearly call for public disclosure to some degree by reason of a significant public interest in ensuring that the investigations, reports and findings may be seen to have been fairly and properly conducted and concluded. This being so, an agency could consequentially and properly conclude that public disclosure will be effected at the agency’s own cost, for the very same reasons. A determination of this nature would, without doubt, be a responsible decision open to the agency in such circumstances and would be a decision based upon relevant considerations. It is the public significance of the documents that suggests that no charges should be imposed: to put it simply, the documents should be there for all to see without restriction. By parity of reasoning, it follows, therefore, that in circumstances like the present, particularly where there is a discernable and specific public interest in disclosure, a proper exercise of the s.24 powers may, by reason of the public interest in disclosure, bring about a determination to decline to impose any charges, for which the section provides, when granting access under the Act to a particular applicant. The same public interest is thus well served by granting access to the particular applicant without charge. A responsible decision maker may properly form such a view with respect to charges that it is otherwise entitled to impose. Consequently, in this way, the public interest in ensuring that the investigations have been properly and fairly conducted is relevant to the matter at hand. Just as an agency may adopt such a course, so may the Tribunal, given the assumptions that are in play.

16 Given its relevance, the Tribunal remains well persuaded that the public interest relied upon by the applicant should continue to predominate. Of course, all relevant circumstances and considerations must be considered. The competing considerations advanced by the respondent, put shortly, are that in order to give access in accordance with the Tribunal’s orders it will incur a significant expense for which it has not budgeted. However, in the circumstances it is the Tribunal’s assessment that these considerations are of little weight here. The very nature of the investigations recorded in the documents satisfies the Tribunal that no charges, pursuant to s.24, should be imposed when giving access to them to an applicant pursuant to the Act.

17 By reason of these considerations, the Tribunal is well persuaded that the proper discretionary exercise of the s.24(1)(b) and (c) powers, in the circumstances of this case, require a determination that no charges be imposed upon the applicant pursuant to either of these paragraphs of s.24 (1) of the Act. This gives effect to the significant weight that the Tribunal attributes to the beneficial consequence of ensuring that the investigations may be seen as having been properly and fairly conducted, or otherwise, as the case may be. This disposes of the merits issue argued by the parties.

18 The two assumptions noted at paragraph 13 (third sentence) of these reasons should next be addressed. A review of the legislation shows that they are both correct. Order 5(2)(b) of the Freedom of Information (Fees and Charges) Order 1989 , of course, provides that charges (pursuant to ss.24(1)(b) and (c) of the Act) are not to be imposed in respect of any application under s.34 of the Act. Section 34 provides for the internal review procedure under the Act. However, s.53 of the Act confers review rights in the Tribunal with respect to a person who has been aggrieved by a determination made under s.24 (s.53(1)) and the Tribunal of course, may exercise the same powers as are conferred upon the original decision maker (s.63(2) Administrative Decisions Tribunal Act 1977). Consequently, in this particular matter s.24 has application and the Tribunal possesses the power under s.24 of the Act to impose charges should it, in the exercise of its discretion, decide to do so. The Tribunal is, of course, subject to the provisions of the Act should it exercise such powers.

19 Apart from the discretionary exercise of the power to impose charges under s.24 considered ante, there is an additional, and separate, reason why, in this case, the respondent’s present application should be dismissed. The charges sought by the respondent have been put upon the basis that they are the fees that the respondent will need to pay to its lawyers to undertake and complete the redaction of the subject documents to meet the Tribunal’s orders, being fees calculated upon the basis of time spent by employees of that legal firm. Section 24 of the Act does not encompass fees having this quality. Order 5(3) of the Freedom of Information (Fees and Charges) Order 1989 provides that any charge imposed pursuant to s.24 is to be calculated on the time spent by the agency’s staff in actually dealing with the application or giving access to the documents in question. Thus, a charge properly imposed pursuant to s.24 cannot be calculated upon the basis of time spent by persons who are not the agency’s staff, such as the employees of lawyers that it has retained. The use of the words “time spent” and “actually” are critical here: if no time is in fact spent by the agency’s staff in dealing with the application or in giving access to the document there is no factual basis upon which a charge may be levied. The wording of Order 5(3) does not encompass a notional attribution of time to an Agency’s staff with respect to time spent by persons external to an Agency. For this reason alone, the respondent’s application should be dismissed. As this point was not argued by the parties the proper course is to provide it as an alternative basis for decision based on the Tribunal’s own researches. It is a proper matter for consideration given that the applicant submitted, globally, that the Tribunal was not empowered to impose the charges sought by the respondent.

20 The Tribunal also notes the provision in Order 5(1) of the Freedom of Information (Fees and Charges) Order 1989 that charges under s.24 are to be calculated upon the basis of an hourly rate of $30 per hour. A competent application seeking orders from the Tribunal to impose charges pursuant to s.24 would need to accommodate this statutory requirement, as well as the requirement just discussed. Whilst this aspect was reflected in the respondent’s letter to the applicant dated 28.05.10 (Affidavit of Ms Deborah Gibson exhibit DG-1), the application to the Tribunal was pressed upon a different basis (see affidavit paragraph 14). This was explained upon the basis that the Tribunal’s decision to grant access requires the respondent to incur direct disbursement charges (Ms Gibson’s affidavit paragraph 18). This explanation cannot be correct as the Tribunal’s orders in relation to access did not direct the manner in which the redaction process is to be undertaken. In addition, the statutory provisions must govern the situation in any event.

21 For these reasons the Tribunal declines to impose the charges sought and dismisses the respondent’s application.

22 Given this determination the ancillary orders sought by the respondent do not require consideration. The respondent also sought leave to apply further should there be any relevant charges based upon a possible need to prepare copies of the redacted documents once the process has been undertaken. However, for the reasons given above in relation to the merits of the respondent’s present application, any such charges should not be imposed in the circumstances of this matter. Consequently, the leave sought by the respondent is refused.