Cianfrano v NSW Department of Commerce

[2004] NSWADT 134

CITATION:	Cianfrano v NSW Department of Commerce [2004] NSWADT 134
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cianfrano RESPONDENT NSW Department of Commerce
FILE NUMBER:	043003
HEARING DATES:	31/05/2004
SUBMISSIONS CLOSED:	06/07/2004
DATE OF DECISION:	07/08/2004
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	access to documents - advance deposit and fees and charges - Freedom of Information Act - access to documents - advance deposit and fees and charges
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 Humane Society International Inc.v National Parks & Wildlife Service [2000] NSWADT 133
REPRESENTATION:	APPLICANT C Saggers, Agent RESPONDENT A Johnson, Solicitor
ORDERS:	The reviewable decision is affirmed.

1 This case concerns an advance deposit in respect of the fees and charges that may be imposed under section 21 of the Freedom of Information Act 1989 (NSW) ("FOI Act").

2 The applicant made applications to the respondent agency pursuant to section 17 of the FOI Act. Section 16 of that Act provides that person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. The respondent has made a decision to request an advance deposit from the applicant before it continues to deal with the applicant’s FOI application. The applicant contests that decision. He considers that it was unreasonable of the respondent to request an advance deposit in the present case due to the accepted public interest element of the original FOI application.

3 The matter came on for hearing on 31 May 2004. The applicant was represented by an agent and the respondent was represented by a solicitor of the NSW Crown Solicitor’s office.

4 The factual issues are largely not contested. The applicant made an FOI application dated 25 September 2003 requesting:

“All documents of the Department of Commerce NSW or Department of Public Works and Services, and all other agencies and or agents etc [sic], in relation to all internal working documents and all factual and statistical material relating to, the Land Know [sic] as Flemington Markets at the time of sale to a private company known as Sydney Markets Limited.

This is to include any preparation and the finalisation of the lease or the assets and the business interests of the Sydney Market Authority and the entity of Sydney Markets Limited.”

5 The applicant sought the documents “in the public interest” and requested that all fees and charges be waived. He enclosed a $30 application fee. The manner of access sought was stated to be by way of inspection and the provision of photocopies (pursuant to the form of access provisions in sections 17 and 27 of the FOI Act).

6 Mr Phil Havenstein, the FOI Coordinator of the respondent, wrote to the applicant on 10 October 2003. He explained that the respondent had identified a large number of documents that might be caught within the scope of the FOI request. He estimated it would take some 200 hours to process the application. The applicant would be charged a processing fee at the rate of $30 per hour and an advance deposit of $6,000 would be required for the respondent to continue to deal with the applicant’s FOI request. The letter was incorrectly addressed and the applicant did not receive it until 31 October 2003 when it and other correspondence was sent to him by the said officer by facsimile transmission. The applicant wrote a letter objecting to the decision to request an advance deposit of him in a letter to the FOI officer of the respondent dated 31 October 2003. The applicant described the decision as outrageous and an attempt to subvert the spirit of the FOI Act. He said he was considering his position. In a further letter to the respondent dated 7 November 2003, addressed to Ms Rebekah Stevens, Manager, Ministerial and Executive Support of the respondent, the applicant sent to the respondent some correspondence with the Premier’s Department and Chapter 4 of the NSW Auditor-General’s Performance Audit of the Freedom of Information Act dated August 2003 (“the Auditor-General’s Report”). None of these documents was attached to the exhibited copy of the letter – exhibit A).

7 After the hearing in the above matter concluded on 31 May 2004, the Tribunal permitted the applicant to file and serve some further documents that had been referred to by the applicant's agent during the course of his submissions that afternoon. Some documents were delivered to the Tribunal by the applicant later that same day to which I shall refer later in these reasons.

8 On 7 June 2004 the Tribunal also received a large bundle of material from the applicant. It included published material from the NSW Ombudsman and a full copy of the Auditor General's report of August 2003. It also included a number of letters that were not tendered by the applicant or the respondent at the hearing. Those letters are:

1 letter dated 30 June 2003 from the Deputy Director-General of the Premier's Department New South Wales to the applicant;

2 letter dated 19 August 2003 from the applicant to the Manager, FOI and Privacy, Premier's Department; and a

3 letter dated 9 December 2003 from the Director, New South Wales Treasury to the applicant.

9 By letter to the respondent’s representative on 29 June 2004, the Tribunal asked whether the respondent objected to the receipt of those documents into the applicant’s evidence in respect of the proceedings. The respondent’s solicitor replied by letter on 5 July 2004 and submitted that the respondent did object to the proposed late tender as the hearing had concluded and every opportunity was provided by the Tribunal so as to permit the tender earlier. It was also objected to on the grounds of relevance and the fact that the material was incomplete and untested. It was submitted that the Tribunal should not take that fresh material into account.

10 The said letters establish that some time in 2003, the applicant made FOI applications, similar in terms to the one made to the respondent, to the Premier’s Department and to the New South Wales Treasury. Both Departments apparently determined the FOI applications and waived the processing fees and charges under the FOI Act. The schedules to the determinations were not put into evidence and none of the documents so released to the applicant were put into evidence.

11 I am prepared to admit the three letters into evidence. The fee waivers by those Departments was a stated primary reason for the applicant to make the application he did to the Tribunal and they were referred to in the correspondence between the parties from time to time. It was a reason why the applicant considered the respondent’s determination to be “unreasonable” within the meaning of section 53(3)(a)(iv) of the FOI Act. That fact was conceded by the respondent in any event. Apart from this, the new material is not very significant as it relates to what other agencies did in different circumstances at another time.

12 In response to the applicant's letter of 7 November 2003, Ms Rebekah Stevens sent a letter to the applicant dated 18 November 2003 in which she said she had considered his letter and the attachments to his letter and that she was unable to reduce the fees associated with his FOI application. She wrote, inter alia, she would be happy to reconsider her decision not to reduce the fees if the applicant could demonstrate how the information requested would be of benefit to the public or that the public had any particular interest in this matter. An offer was made by the respondent in that letter for the applicant to discuss with the respondent the narrowing of the scope of the applicant's request.

13 There were further communications between the parties on this issue. The applicant’s primary concern regarding the public interest was that Crown land was sold in New South Wales to the then current tenants without it going through the public tender process at what he considered "a fraction of its real value" (applicant's letter dated 25 November 2003). In one letter (dated 10 December 2003) the applicant stated:

"The sale of Flemington Markets is Crown Land, where the operation of the central market system for the Sydney basin is conducted for the fruit and vegetables and flowers from all over Australia are distributed. It is not only of Public Interest to the people of New South Wales, it is of vital importance to every Australian. So I put it to you as clearly as I can not only is this FOI in the Public Interest and is in the National Interest.[sic]"

14 Ultimately, Ms Stevens wrote to the applicant in a letter dated 19 December 2003 in which she made a final determination that an advance deposit was required pursuant to section 21 of the FOI Act and that the agency would refuse to deal with the application under the Act if payment of the advance deposit had not been made pursuant to section 22 of the FOI Act.

15 On 5 January 2004, the applicant filed his application for review in the Tribunal. He relied on a deemed refusal of his FOI application under the FOI Act. A planning meeting occurred at the Tribunal on 10 February 2004. At that meeting, the Tribunal noted that the respondent was undertaking an internal review of the decision. On 2 April 2004, the internal review decision was undertaken by Mr Ray Modini, Manager, Legal Services, Office of Industrial Relations. It is not contested by the parties that his decision was reduced to writing on 2 April 2004 in the form of a letter of that date to the applicant by Ms Rebekah Stevens. It is not contested that this is to be regarded by the Tribunal as the decision under review in these proceedings.

16 The internal reviewer reviewed the original time estimates and came up with a figure of 170 hours to process the FOI application at $30 per hour making a new estimate of $5,100. The applicant's public interest arguments were accepted by the internal reviewer (for reasons which are not clear on the face of the internal review decision) and a 50% reduction in the FOI processing fee was determined. Accordingly, the advance deposit requested of the applicant was reduced and only the amount of $2,500 was now requested of the applicant if he required the processing of his FOI application to continue. It was noted in the said letter that the applicant had discussed narrowing the scope of his application and minimising processing costs with an officer of the respondent. However, from the evidence that was before the Tribunal, those discussions did not achieve anything significant. The internal review letter also attached information that the respondent was required to disclose in accordance with a Memorandum from the Premier of New South Wales (Memorandum number 2000-11 - Disclosure of Information on Government Contracts with the Private Sector). The memorandum was put into evidence by the respondent. It is a memorandum to all State Ministers introducing a set of guidelines in order to clarify what information relating to the Government's contractual arrangements with the private sector should be disclosed and what should remain confidential and when summaries of certain parts of those contracts should be routinely released. The guidelines sought to ensure uniform release of information. The said information was to be made “readily accessible” to the public free of charge within 90 days of the transaction. It did not in terms relate to or impact on the FOI Act.

17 The information now disclosed by the respondent to the applicant pursuant to the said memorandum in the internal review decision contained an outline of significant details relating to the sale contract of the Crown land at Flemington markets to an entity known as Sydney Markets Ltd. The price said to be paid was $83.5 million (exhibit A, pages 39-41). Among the other details set out in that document is a statement that the purchase price was based on an “independent valuation report using market evidence”.

18 In addition to the documentary evidence, the respondent adduced affidavit evidence from two officers going to the matters at issue in the proceedings. Both officers were cross-examined by the applicant’s agent. Mr Jacob Hoogesteger, the Senior Development Manager of the State Property Unit of the respondent gave evidence by way of affidavits dated 7 & 28 May 2004. Those affidavits set out in some considerable detail the lengthy and thorough method by which he revised the previous estimates of time it might take the respondent’s officers to process the applicant’s FOI claim. He undertook this review on 15 April 2004. All relevant files were located and looked at. There were, in effect about 8 standard files (about 300 pages each) and a lever arch file (the equivalent in size to about 3 standard files) (“the documents caught”). He selected a file at random and reviewed each folio on the file. He found some documents that he would be likely to exempt under the FOI Act, for example, he said there were Cabinet documents and documents covered by legal professional privilege contained in that file. He also recommended that numerous named third parties be contacted in relation to their business affairs in connection with any determination under the FOI Act pursuant to section 32 of the FOI Act (known as the “reverse FOI procedure”). In total, he estimated 37.5 hours as the time required to make the requested documents available to the applicant under the FOI application.

19 He was cross-examined, inter alia, about what he said was a broadly similar (to his recollection) FOI request by the applicant to the Premier’s Department. He agreed that those documents were provided to the applicant free of charge under the FOI applicant in that the Premier’s Department FOI officer had accepted the applicant’s public interest arguments. He said he was generally familiar with the documents caught by the applicant’s FOI request, as he had some involvement with the subject sale of the Crown land.

20 The other officer to give evidence was Mr Phillip Havenstein, the FOI Co-ordinator of the respondent. In two affidavits, sworn 7 & 28 May 2004, he set out in detail the history of the matter and described processes by which the respondent came to make the various estimates of time to be spent dealing with the applicant’s FOI application. He said that he accepted and adopted the revised estimate of 37.5 hours provided to him by Mr Hoogesteger and, after consultation with Ms Stevens on 28 April 2004, increased the time estimate to 47.5 hours and added necessary third-party consultation and analysis time to come to a total of 58 hours at $30 per hour, namely, $1,740. This evidence was not challenged by the applicant’s agent in lengthy cross-examination.

21 On 10 May 2004 (21 days before the Tribunal hearing) the respondent put to the applicant the above further revised figures for calculating the proposed processing time by way of a letter of that date from the respondent’s solicitors (exhibit C). Further details of the breakdown of proposed time to be spent was also set out in a “Corporate and Ministerial Communication” written by Mr Havenstein dated 28 April 2004 (exhibit D).

22 As it turns out, in dealing with the applicant’s FOI application on this preliminary basis, the respondent has ultimately gone from an initial position of generally estimating 200 hours at $6000 with no discount (on 10 October 2003) and requesting this entire amount as an advance deposit, to a firm estimate of 58 hours at $1,740 with a 50% discount on the fees and charges(on 10 May 2004). Of this 58 hours, the applicant would pay the sum of $870. The final position of the respondent (as stated to the applicant in the solicitor’s letter dated 10 May 2004) was that an advance deposit of $435 (half of the ultimate discounted amount) was requested to be paid as an advance deposit pursuant to section 21 of the FOI Act. This is a substantial reduction. In addition, the applicant received some significant information due to the (late) release of information under the Premier’s Memorandum 2000-11.

23 The applicant continues to regard the imposition of any such advance deposit as unreasonable, given the public interest element of his FOI application and , he argued, given that two other State Government agencies completely waived their fees in relation to similar applications by the applicant.

24 In cross-examination, Mr Havenstein stated that the respondent did not turn its mind to the giving out of the information under the Premier’s Memorandum 2000-11 until after a planning meeting had been held with the applicant at the Tribunal earlier in the year. Ordinarily, such contract information should be available within 90 days of the sale (and the Flemington Market Crown land sale settled on 1 July 2002). He said that at all times, the respondent was implementing the FOI Act and the guidelines published by the Premier contained in the “FOI Procedure Manual”, Third Edition, 1994, published by the Premier’s Department (the “FOI Procedure Manual”).

25 Mr Havenstein also explained in cross-examination that the respondent is an “off-budget” Department and was a “hybrid” and “commercial agency” and it was generally required to impose fees and charges for all FOI applications. He explained that there was no provision in the FOI Act or in the FOI Procedure Manual for a full waiver of fees and charges of dealing with FOI applications in the present case. He said that it was the intention of the respondent to ultimately charge the applicant for time to be spent in dealing with or processing the applicant’s FOI application. The respondent would apply the 50% discount to those charges after accepting the applicant’s argument based on the public interest.

26 In submissions, the respondent’s legal representative accepted that under section 24 of the FOI Act, the respondent had the power to waive fees and charges entirely in determining any FOI application. However, it was submitted, if fees and charges were to be applied, the agency was then bound by the provisions of the Premier’s Freedom of Information (Fees and Charges Order) 1989 (“the Fees and Charges Order”) published in the NSW Gazette (No 81 on 30 June 1989, p 3834) and made pursuant to section 67(1) of the FOI Act. It was said this instrument limited the available discount to 50% only of the fees in cases such as the present where processing fees were going to be charged and the public interest arguments of the FOI applicant were accepted by the agency.

The Applicable Legislation

27 Section 21 of the FOI Act provides:

21 Agencies may require advance deposits

(1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine.

(2) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the sum of the application fee and of any advance deposits paid in respect of the application, the agency may request the applicant to pay to it such amount, by way of further advance deposit, as the agency may determine.

(3) The amount of an advance deposit requested by an agency in respect of an application shall not be such that the sum of the application fee, the advance deposit and any further advance deposits paid in respect of the application exceeds such amount as, in the opinion of the agency, will be necessary to cover the costs of dealing with the application.

(4) A request for an advance deposit shall be accompanied by a notice that sets out the basis on which the amount of the deposit has been calculated.

(5) The amount of an advance deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request.

(6) The period of time between the making of a request under this section and the payment of an advance deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with.

28 Section 22 of the FOI Act provides:

22 Agencies may refuse to continue to deal with applications if advance deposit not paid

(3) An agency may refuse to continue dealing with an application if:

(a) it has requested payment of an advance deposit in relation to the application, and

(b) payment of the deposit has not been made within the period of time specified in the request.

(4) If an agency refuses to continue dealing with an application under subsection (3):
(a) it shall refund to the applicant such part of the advance deposits paid in respect of the application as exceeds the costs incurred by the agency in dealing with the application, and

(b) it may retain the remainder of those deposits.

(5) An agency that refuses to continue to deal with an application under this section must forthwith cause written notice of that fact to be given to the applicant.

(6) A refusal to continue to deal with an application under this section is taken to be a determination that is subject to internal review under Part 3 and external review under Part 5, and the provisions of those Parts apply accordingly.

29 Section 24 of the FOI Act provides for determination of FOI applications. This section has not yet been applied by the respondent in the present case. Section 24(1) provides:

24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given—any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

30 The Tribunal’s jurisdiction (described in Part 5 of the FOI Act as “external review”) derives from section 53(3)(a) of the FOI Act which relevantly provides that a person is aggrieved by a determination of an agency if the determination is to the effect that:

“(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred,”

31 It is accepted by the parties that 53(3)(a)(v) does not yet apply, in that the respondent has not yet dealt with the FOI application in the relevant sense and no charge has yet been incurred. Rather, the parties accept that 53(3)(a)(iv) of the FOI Act applies in that the respondent has determined that access to documents is to be given to the applicant (presumably at least in part) and it will be subject to an advance deposit charge for dealing with the access application, or for giving access to the documents. It is accepted that the applicant considers the advance deposit to be unreasonable. It is significant to note that the respondent has not yet finally determined to impose fees and charges in that a determination on the FOI application pursuant to section 24 has not yet occurred. However, from all of the evidence, it is almost certain that the respondent will go on to determine that fees and charges will apply in the present case, discounted by 50%. That issue is not yet before the Tribunal. Only the issue of the advance deposit is before the Tribunal. In addition, the amount of the advance deposit is not seriously in issue between the parties. The applicants contends that the imposition of any advance deposit at all in the present case is unreasonable.

32 As with any proceedings before the Tribunal regarding a determination made under the FOI Act, section 61 of the Act provides that the burden of establishing that the determination is justified lies on the agency.

33 Section 67 of the FOI Act relates to fees and charges. It provides:

“ 67 Fees and charges

(1) The Minister may, by order published in the Gazette, establish guidelines in relation to the imposition, collection, remittal and waiver of fees and charges under this Act.

(2) In establishing guidelines under this section, the Minister shall have regard to:

(a) the need to ensure that disadvantaged persons are not precluded from exercising their rights under this Act merely because of financial hardship, and

(b) the need to ensure that fees and charges should reflect the costs incurred by agencies and Ministers in exercising their functions under this Act.

(3) An agency or Minister, in determining the amount of any fee or charge under this Act, shall not contravene any guidelines in force under this section.

(3A) The guidelines in force under this section are to be taken into account:

(a) by the Tribunal when reviewing a determination described in section 53(3)(a)(iv) or (v), and

(b) by the Ombudsman when reviewing the conduct of a person or body in relation to such a determination.

(3B) A charge under this Act for dealing with an application or for giving access to a document is not to include any amount for additional time spent in searching for a document that was lost or misplaced.

(4) Any fee or charge that is due to an agency or Minister under this Act may be recovered as a debt or liquidated demand in a court of competent jurisdiction.

(5) Fees or charges received by agencies or Ministers under this Act do not form part of the Consolidated Fund and may be used by the agencies or Ministers to defray the costs incurred by the agencies or Ministers in exercising their functions under this Act.”

34 The Minister administering the FOI Act is the NSW Premier. As set out above, in June 1989 he gazetted the Fees and Charges Order which was applied by the respondent in making the decision under review and which constitute guidelines which are to “be taken into account” by the Tribunal when reviewing a determination under section 53(3)(a)(iv) of the Act.

35 The Fees and Charges Order sets out a detailed basis for the fees and charges to be imposed for giving access to documents and for dealing with an application (in determinations made under section 24 of the Act). It applies the FOI Procedure Manual in various places, relevantly, in respect of application of the meaning of the “public interest” (at clause 3(2) of the Order). It provides for an initial application fee of between $20 and $30 for FOI applications and other charges and sets out the basis for reductions and refunds of fees and charges. An hourly rate of $30 per hour is set (clause 5(1)). Clause 6 of the Order provides specifically for a reduction of 50% of fees and charges that would otherwise be payable in respect of the FOI application in certain cases including where, for example the applicant is under the age of 18 years or is a Commonwealth pensioner. Clause 6(e) provides for the reduction to apply to “an applicant whose application relates to information that it is the public interest to make available”.

36 Clause 5 of the Fees and Charges Order provides:

“ Charges to be Imposed

5(1) The charges –

(a) for the giving of access to a document (being a charge determined under section 24(b) of the Act; and

(b) for dealing with an application (being a charge determined under section 24(c) of the Act),

are to be calculated on the basis of an hourly rate of $30 per hour.

(2) Such a charge is not to be imposed in respect of –

(a) the first 20 hours during which –

(i) an application under section 17 or 36 of the Act (being an application made by a natural person in respect of which documents relating to his or her personal affairs) is dealt with; or

(ii) access to a document the subject of such an application is given.

(b) any application under section 34 of the Act.

(3) Such a charge is to be calculated on the time spent by the agency’s or Minister’s staff in actually dealing with the application or giving access to the document. Calculated to the nearest quarter hour.”

37 The application here was made under section 17 of the FOI Act. Section 36 relates to applications for access to Minister’s documents. Section 34 relates to internal review applications. As described above, no formal determination has yet been made pursuant to section 24. However, it is clear that the agency has already determined it will almost certainly go on impose a processing charge on the applicant for dealing with the application and for providing access to the documents so caught. The documents here do not relate to the personal affairs of the applicant, so the 20 hour exemption in clause 5(2)(a) of the Order does not apply. The remainder of clause 5 applies to the application.

38 The fees and charges set out in the Fees and Charges Order have not increased at all since June 1989.

39 The Fees and Charges Order makes no direct mention of or provision for the imposition of advance deposits under section 21 of the FOI Act. The said Order is relevant to the Tribunal’s task in considering the advance deposit issue as that issue cannot be divorced from the determination that will be ultimately made by the agency. Accordingly, it cannot be ignored and I have had regard to the Fees and Charges Order in making this determination.

40 I have also had regard to the Premier’s FOI Procedure Manual which in part sets out the Government policy on the issue. At page xvii of the Manual, the word “[policy]”, where it appears in the Manual is used to denote the practice or procedure “which is to be observed by agencies”. The fees and charges to be imposed under the FOI Act are set out in section 2.14 (pages 25 to 29), 4.6.6 & 4.71 (pages 77 to 78) and 4.10.3 (page 90) of the Manual. There is no discussion of a complete waiver of fees and charges at all in the Manual in the present context. Indeed, as to the reduction of 50%, the Manual states (at paragraph 2.14.2) that only “one reduction in fees may be given in respect of each application”.

41 Fee reduction in the public interest is discussed in the Manual at paragraph 2.14.4. Some of the factors to be taken into account are set out there. It is stated the “central question” is “whether the benefit to be gained from releasing the document will flow on to either the public at large or a significant section of the public. Each case will have to be considered on its merits”.

42 In the sections in the FOI Procedure Manual dealing with advance deposits, it is stated that, inter alia, “It is expected, however, that advance deposits will be used only with large scale requests involving significant charges. [policy]” (at paragraph 2.14.6) and that: “Generally, this provision would need to be used only where the estimated cost of dealing with an application is significant.” (at paragraph 4.6.6).

43 In the present case, where the FOI request would involve the agency in undertaking an estimated 58 hours processing time (the evidence of Mr Havenstein) and would involve the examination and consideration of up to some 3,300 folios held on numerous files (the evidence of Mr Hoogesteger) and consultation with numerous third parties pursuant to section 32 of the FOI Act regarding their business affairs, I consider it does constitute a large scale FOI request involving significant charges.

44 At the hearing, despite a number of invitations for the applicant to adduce evidence the applicant did not adduce any sworn or oral evidence at all. He, tendered some documentary material and delivered some further material to the Tribunal as described in these reasons.

45 At the hearing, the applicant’s agent attempted to tender some extracts from annual reports of the entity responsible for the Flemington Markets in order to show, for example, that the value of the land and buildings was estimated to be some $225 million in 1990 (and it was sold in 2003 for some $83.5 million). However, the tender was objected to as it was incomplete and it did not show on its face the basis of the valuation and the Tribunal rejected it. The respondent did concede that the applicant had concerns that the subject Crown land was undervalued at the time it was sold.

The Submissions of the Parties

46 The respondent submitted that the critical issue for the determination of the Tribunal is the imposition of the advance deposit and the refusal to continue to deal with the application until the advance deposit is paid pursuant to sections 21 and 22 of the FOI Act. It was submitted that this particular agency has always charged fees under the FOI Act as it is a semi corporate department, an “off-budget” agency and it must return a profit to Treasury. It was submitted that the estimate of hours is reasonable and this was not challenged by the applicant. It was submitted that the correct and preferable decision was to impose an advance deposit. The agency had a statutory right to impose the said deposit and that this was a strong power in the FOI Act and was clearly part of the regime of the Act. On a proper reading of the Act as a whole, fees and charges could be imposed as a matter of course. It was submitted that the agency is able to recover fees and charges in Court pursuant to section 67(4) of the FOI Act and that it was more practical to obtain some of the money upfront in that it saved the expense of later fee recovery in Court. It was said that fees and charges should reflect the costs incurred by agencies in exercising their functions under the Act and that this policy is plainly reflected in section 67(2)(b) of the Act.

47 It was submitted that fees are able to assist an FOI applicant to sensibly narrow the scope of their large applications with the aid of the agency and it assists in order to “focus their mind” on the real documents sought to be obtained and that FOI applicants should not be a burden on the public purpose, as it were. It was said that in this particular case, it is strongly likely that fees and charges are going to be imposed in the ultimate determination of the applicant's FOI Act application. This was said to be reason enough for the Tribunal to require the payment of an advance deposit in this particular case. It was also submitted that sections 21 and 22 of the FOI Act specifically do not provide for application of any public interest test and that this was a deliberate decision of Parliament. It is a threshold question and the Tribunal should have a concrete reason as to why an advance deposit should not be charged in the present case. The respondent also relied on written submissions dated 31 May 2004 which were handed up at the hearing.

48 The applicant’s agent submitted that the applicant should not be charged anything at all by way of an advance deposit. He relied on what appears at page 224 of the book by Anne Cousins “Annotated Freedom of Information Act New South Wales”, 1997, LBC Information Services, Sydney. The author there discusses the “user-pays” system of the NSW FOI Act and section 67 in particular. She said, inter alia, that the FOI Act imposed the most expensive charging structure in Australia and there was no set upper limit. She said (quoting the NSW Ombudsman’s 1994 report to Parliament) that section 67(2)(b) of the FOI Act stood in direct contrast with the intention of Parliament in section 5(3)(b) that the discretions conferred by the Act “shall be exercised as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information” (her emphasis). It was said that FOI could easily become unaffordable if processing charges were wrongly imposed by an agency.

49 The applicant submitted that the concept the FOI Act could be used as a means of making money was objectionable. The documents sought are State records and the public should have cheap access to them. He said the test should be whether the subject documents are “serious” documents that have a public purpose. Matters regarding the sale of Crown land have that public purpose and it is imperative that the Tribunal uses its powers so as to obtain the best possible result for the public. He said the request was about a major transaction and that in these circumstances, fees and charges should only be imposed as a matter of last resort. He said the applicant was acting for the public in this application. He said that 100 acres of prime Crown land was sold to a private group with no tenders being first called for and it was sold to its then existing tenants (apart from the area of land, which was not the subject of evidence, the remainder of these facts were not in dispute at the hearing). He said that the agency did not publish its statement of information pursuant to the Premier’s Memorandum 2000-11 within 90 days of the sale as it should have done and this should arouse suspicion regarding the entire process. He relied on the applicant’s correspondence as tendered by the respondent going to the other determinations of two State agencies which each waived fees in the public interest on a similar FOI request.

50 Immediately after the hearing, the applicant filed with the Tribunal some of the material that he had referred to in his oral submissions. The documents he filed included an extract from the NSW Ombudsman’s report Freedom of Information The Way Ahead, a Special Report to Parliament published in January 1995. The Ombudsman’s often stated concerns were repeated there regarding the high fees and charges that could be and were then being levied by agencies under the FOI Act. In the Ombudsman's view, "this capacity and this practice is totally at odds with the objects of the Act" (paragraph 2.4). The Ombudsman recognised that a reference to costs can be appropriately seen to be already included in the objects section of the FOI Act (even though it is expressly referred to as “an intention of Parliament" in relation to the exercise of discretions conferred under the Act in section 5(3)). It was recommended that section 5(1) of the Act be amended to include a further object that information be readily accessible to the public either free of charge or at the lowest reasonable cost. That recommendation was not picked up by Parliament.

51 Reference was also made by the applicant to the Auditor-General’s Report of August 2003. That report related to an “FOI audit” of three State Government agencies and examined the treatment of 84 requests for non-personal documents. The respondent agency was not one of the three. A number of recommendations of a policy and practical nature were made which were said should apply to all agencies. The recommendation in relation to fees and charges was that they should be applied consistently (page 29). Processing fees were required in about one-third of the cases examined by the Auditor-General and processing fees were actually paid by FOI applicants in the range from $30 to $1,380. One of the Departments said that processing fees for such requests were charged as a last resort for that particular Department. The report then stated, primarily concerning the other two agencies (at page 29):”

“Although fees were reasonable, they were not applied consistently across all applications, particularly those received by [two agencies]. It was difficult to determine why fees were charged in some cases and not others, even though it appeared that similar work had been undertaken. This could give rise to perceptions of favouritism or bias, even though decisions on fees were made in good faith. We found that approaches varied according to the officer handling the request. Although there were guidelines in place specifying when to apply processing fees, they were not always followed. They also differed across the three agencies.”

52 In the present case, while I was not made aware of any internal guidelines of the respondent for processing non-personal FOI applications in relation to fees and charges, it is important to have regard to the fact that the respondent does seek to apply fees and charges consistently in FOI matters. It charges them in all such FOI applications. The issues as to fees and charges discussed by the Auditor-General in the Report of August 2003 do not arise.

53 This is not a case of the kind considered by the Tribunal in Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 where the Tribunal ultimately held that no internal review had been conducted and it did not have jurisdiction. The parties are agreed, and I consider rightly so, that there was an internal review conducted here under the FOI Act and the Tribunal has jurisdiction to determine the matter.

54 As to the question of what constitutes an “unreasonable” advance deposit for the purposes of section 53(3)(a)(iv) of the FOI Act and what is the “lowest reasonable cost” in section 5(3)(b) of the FOI Act, I consider that what is unreasonable must be considered in the circumstances of the particular case as a whole and with a balancing by the Tribunal of the respective interests at stake (cf: Humane Society International Inc.v National Parks & Wildlife Service [2000] NSWADT 133 at [21] (in a different context)).

55 The public interest is conceded in the present case. The applicant’s best remaining argument is that the Tribunal should have regard to the fact that two other State agencies provided the applicant an FOI determination (and, presumably, some documents) in response to similar FOI request on the grounds of the public interest. However, those agencies were not the respondent and they did not have the primary day-to-day carriage of the sale of the Flemington Markets land. The evidence revealed that the respondent carried that burden. Accordingly, there were likely more documents held by the respondent agency than those held by the other two agencies.

56 In my determination, a significant factor in favour of upholding the respondent’s advance deposit decision is that the respondent will almost certainly go on to determine pursuant to section 24 of the FOI Act that processing fees and charges should apply (with a 50% discount applied) with respect to the applicant’s FOI application. No challenge was made by the applicant to the reasonableness of the amount of the proposed fees and charges and it was never contended they would be excessive or were improperly or unfairly calculated.

57 The question for the Tribunal is whether an advance deposit should be fixed. I have come to the conclusion that it should be fixed in the circumstances of this particular case. I accept the submissions of the respondent that in the context of a decision by the respondent to almost certainly impose significant FOI processing charges, having regard to the evidence concerning this particular agency’s structure and practices, and, the evidence concerning the large number of documents caught by the FOI application and the lengthy time it will take for the respondent to process the application, it would not be appropriate for the Tribunal to deprive the agency of a reasonable advance deposit. The amount of the advance deposit sought by the respondent in the present case, the sum of $435, appears modest and reasonable in the circumstances. It would remain open for the respondent to later waive any further or other processing charges, if it chose to do so.

58 I am also mindful of the Government’s policy as to the imposition of fees and charges as set out in the Premier’s FOI Procedure Manual and the directions of the 1989 Fees and Charges Order. I see no reason why they should not be taken into account in the present case. As described earlier in these reasons, I consider the FOI application does constitute a large scale FOI request involving significant potential cost to the agency. Pursuant to section 64 of the Administrative Decisions Tribunal Act 1997 (NSW), the Tribunal is bound to take into account or, to “give effect to” any applicable Government policy in determining an application for review of a reviewable decision. I do not consider that the Government’s policy (in the FOI Procedure Manual and the Fees and Charges Order) is contrary to law or that its application to the present case produces an unjust decision in the circumstances of the present case for the reasons set in this determination.

59 It would be more practical for an advance deposit to be applied here. It would have the added advantage of focusing the mind of the applicant on the documents he would most desire to have access to. It would cause the applicant to further reflect on the form of access he would like (for example, he might now merely wish to inspect the documents instead of having them copied).

60 In terms of section 21 of the FOI Act, I consider the costs to the agency of dealing with the applicant’s FOI application are likely to exceed the amount of the applicant’s $30 application fee and it was appropriate for the agency to request an advance deposit. It is the correct and preferable administrative decision in all the circumstances.

61 The Tribunal determines that the reviewable decision is affirmed.