David Tennant and Australian Broadcasting Corporation
[2014] AATA 452
[2014] AATA 452
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1021
Re
David Tennant
APPLICANT
And
Australian Broadcasting Corporation
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 4 July 2014 Place Canberra The decision under review is affirmed.
................[sgd]........................................................
RM Creyke, Senior Member
Catchwords
FREEDOM OF INFORMATION – charges for providing access to documents - whether fee should be reduced or waived – matters to which Tribunal must take into account when exercising waiver power – whether payment of charge would cause financial hardship – whether giving of access to documents is in the public interest
Legislation
Freedom of Information Act 1982 (Cth) sections 15, 29, 53A, 54, 54L, 55G, 55K, 58, and 93A
Freedom of Information (Charges) Regulations 1982 (Cth) regulation 3
Australian Information Commissioner Act 2010 (Cth) section 12.
Cases
Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562
Re Besser and Department of Infrastructure and Transport [2011] AICmr 2
Re Australian Broadcasting Corporation and Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation and David Tennant [2012] AATA 914
Re Baljurda Comprehensive Consulting Pty Ltd and Australian Agency for International Development [2011] AICmr 8
Re Briggs and Department of the Treasury (No 2) [2012] AICmr 17
Re Fletcher and Department of Broadbanc, Communications and the Digital Economy (No 3) [2012] AICmr
Secondary Materials
ALRC Classification – Content, Regulation and Convergent Media – ALRC Report 118 Summary (February 2012, Terms of Reference
Content, Regulation and Convergent Media – ALRC Report 118 Summary Act s 29(5)(a)
FOI Guideline; accessed at June 2014
Nielsen ‘Top News Websites by Unique Australian Audience – February 2014’; accessed at http: on 18 June 2014
REASONS FOR DECISION
RM Creyke, Senior Member
Mr David Tennant is seeking documents from the Australian Broadcasting Corporation (ABC) under the Freedom of Information Act 1982 (Cth) (FOI Act). He contends that the ABC is under classifying ABC television programs. On 31 January 2013, the ABC informed Mr Tennant that a preliminary estimate of charges for accessing the documents requested was $575.00.[1]
[1] Freedom of Information Act 1982 (Cth) s 29(1)(b).
On 1 February 2013 Mr Tennant sought review of the preliminary estimate of the charge on the ground that the fee should be waived on grounds of financial hardship and the public interest.[2] On 21 February 2013, the ABC decided to refuse the request to waive or reduce the fee.[3]
[2] Freedom of Information Act 1982 (Cth) s 29(1)(f)(ii).
[3] Freedom of Information Act 1982 (Cth) s 29(6).
The ABC indicated that if the scope of the request was reduced, the delegate would be happy to recalculate the estimate of charges. The initial decision was confirmed by letter from the ABC on 21 March 2013.
Mr Tennant sought internal review of the decision by letter dated 8 April 2013.[4] On 8 May 2013, following internal review, the ABC decided not to waive the fee as requested and to uphold the initial decision. On 14 May 2013, Mr Tennant applied for a review of the decision by the Information Commissioner.[5]
[4] Freedom of Information Act 1982 (Cth) s 54.
[5] Freedom of Information Act 1982 (Cth) s 54L.
At the same time, the ABC decided to reconsider the decision. The FOI Act provides that an agency may vary an access refusal decision.[6] The initial request was an access refusal decision.[7] Accordingly, on 21 November 2013, the ABC reduced the fee to $287.50, that is, the charge was reduced by 50 per cent.
[6] Freedom of Information Act 1982 (Cth) s 55G.
[7] Freedom of Information Act 1982 (Cth) s 53A(e).
The Privacy Commissioner, exercising the powers of the Information Commissioner,[8] decided on 28 January 2014[9] not to waive or further reduce the fee, and affirmed the revised fee of $287.50. In making that decision, the Privacy Commissioner relied on FOI Guidelines[10] issued by the Australian Information Commissioner,[11] Part 4 of which is headed ‘Charges for providing access’.
[8] Australian Information Commissioner Act 2010 (Cth) s 12.
[9] Freedom of Information Act 1982 (Cth) s 55K.
[10] FOI Guideline; assessed at in June 2014.
[11] Freedom of Information Act 1982 (Cth) s 93A.
On 25 February 2014, Mr Tennant sought further review of that decision by the Tribunal. The application was considered on 17 June 2014 and a decision was made on 4 July 2014.
Legislation
The relevant legislation is contained in the FOI Act and the Freedom of Information (Charges) Regulations 1982 (Cth) (FOI (Charges) Regulations). Also relevant are the Consolidated FOI Guidelines (Guidelines), to which the Tribunal is to have regard in its decision-making under the FOI Act in accordance with section 93A of the FOI Act. Part 4 of the Guidelines deals with charges for providing access.
Consideration
The general objectives of the FOI Act include the following:
3(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government's activities.
In other words, a focus of these objectives is that documents held by government, previously not available to the public should, following a request for documents, be publicly available in order to better inform those involved in public debate.
Another of the general objectives is that in exercising the discretion to impose a charge lower than the charges contained in the FOI (Charges) Regulations, the decision-maker must take into account parliament’s intention ‘that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’.[12]
[12] Freedom of Information (Charges) Regulations 1982 (Cth) s 3(4).
One such ‘function’ is the decision of an agency, and on review the Information Commissioner, as to any charge to be imposed.[13] Since the Tribunal has power to review ‘matters relating to charges payable under this Act in relation to a request’,[14] the Tribunal must also take account of the ‘lowest reasonable cost’ objective in coming to its decision.
[13] Freedom of Information (Charges) Regulations 1982 (Cth) s 29.
[14] Freedom of Information (Charges) Regulations 1982 (Cth) s 58(6).
The Tribunal has power to waive or to reduce a charge.[15] In the exercise of this function, the Tribunal, in accordance with section 29(5) of the FOI Act ‘must take into account (a) whether the payment of the charge, or part of it, would cause financial hardship to the applicant’; 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’.[16] Both criteria in the FOI Act must be satisfied.
[15] Freedom of Information (Charges) Regulations 1982 (Cth) ss 29(1), (5); Freedom of Information (Charges) Regulations 1982 (Cth) reg 3.
[16] Freedom of Information (Charges) Regulations 1982 (Cth) s 29(5)(a), (b).
At the same time, in exercising its discretion the Tribunal is not restricted to these two criteria.[17] Other matters may also be considered. One such matter is the intention discernible in the imposition of the charge that the amount should reflect the time and effort involved in accessing the requested documents. That factor takes into account the time spent searching for or retrieving the document, in examining the document and making any deletions, in making a document available in a usable form, in production of a written transcript, and in arranging for the inspection, viewing, or listening to a recording of a stored image, or in copying and delivery of the relevant document.[18]
[17] Freedom of Information (Charges) Regulations 1982 (Cth) s 29(5) – prefatory words.
[18] Schedule to the FOI (Charges) Regulations.
In other words, there is an intention that a user pays principle should apply. That is reflected in the Guidelines which state that there can be a charge for the ‘actual costs’ incurred by an agency.[19] The Act also provides that if a charge is imposed, no access is granted until the charge is paid.
[19] FOI Guidelines - heading to [4.39]-[4.42].
The Guidelines are not legislative instruments.[20] However, a decision-maker, including the Tribunal, in the performance of a function, or the exercise of a power under the FOI Act, including access requests,[21] is to have regard to any Guidelines issued by the Information Commissioner.[22]
[20] Freedom of Information (Charges) Regulations 1982 (Cth) s 93A(3).
[21] Freedom of Information (Charges) Regulations 1982 (Cth) s 15(5A).
[22] Freedom of Information (Charges) Regulations 1982 (Cth) s 93A.
Public interest
The Tribunal must consider 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’.[23]
[23] Freedom of Information (Charges) Regulations 1982 (Cth) s 29(5)(b).
The Guidelines state that ‘the “public interest” is a concept of wide importance that cannot be exhaustively defined’.[24] The Guidelines also note that ‘it is important to identify the “general public interest” or the “substantial section of the public” that would benefit from disclosure’.[25] As the Guidelines state:
The FOI applicant may benefit from disclosure, but for the purposes of s 29(5)(b) there should also be a benefit flowing more generally to the public or a substantial section of the public. Often this will require consideration both of the content of the documents and the context of their release, for example, whether the documents relate to a matter of public debate or for decision by government.[26]
[24] FOI Guidelines at [4.58], citing Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 at 57per Lindgren J.
[25] FOI Guidelines at [4.55].
[26] Ibid.
In summary the intention is that release of the documents enables the public generally or a substantial section of the public to contribute to public debate or to government decision-making.[27] The public benefit is in providing access to ‘information previously withheld by the agency [which] is now accessible to the community’.[28] These findings are consistent with the general objective of the FOI Act, to enhance democracy by increasing public participation in government processes, to promote better-informed decision-making, and to increase scrutiny, discussion, comment and review of the government's activities.
[27] Freedom of Information (Charges) Regulations 1982 (Cth) Act s 3(1).
[28] Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301 at 307 per Beazley J, cited with approval Re Baljurda Comprehensive Consulting Pty Ltd and Australian Agency for International Development [2011] AICmr 8 at [18].
This intention is also reflected in the Guidelines which state of the intent of section 29(5) that in making a decision to waive or reduce a charge, factors to be taken account are whether:
‘The document relates to a matter of public debate, or a policy issue under discussion within an agency, and disclosure of the document would assist public comment on or participation in the debate or discussion’.
There are three pre-requisites implied by these findings and objectives, namely, that:
·the documents disclosed are not presently available to the public;
·the subject should be a matter of public interest or relate to decisions by government; and
·the release will facilitate access by the public generally, by a substantial section of the public, or by government and facilitate public debate or government decision-making.
Availability of documents requested
The documents requested by Mr Tennant are broadly related to the classification of TV programs. The particular programs were specified by Mr Tennant as ‘Breaking Bad’ (Series 1 and 2); ‘Spooks’ (Series 8); ‘Luther’; and ‘The Tudors’ (Series 1). More generally, Mr Tennant has sought:
· policies and documents of the ABC relating to the classification of television programs broadcast on the ABC; and
· internal policies or documents which explain why the ABC Board amended the section of the ABC Code of Practice entitled ‘Television program classifications’ in the 2006-2007 financial year.[29]
[29] Re Australian Broadcasting Corporation and Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation and David Tennant [2012] AATA 914 at [85].
As a preliminary issue it is not clear from Mr Tennant’s submission whether he has assessed the claimed under-classification of the specific programs he mentions under the ABC’s Code of Conduct or the Code of Conduct of the Classification Review Board.
The ABC in its letter of 21 February 2013 noted that ‘there is a significant amount of information already available to the general public regarding the subject of your request, being the process of program classification by the ABC’. The references were to the Australian Broadcasting Commission and Special Broadcasting Service Joint Submission to the Australian Law Reform Commission National Classification Scheme Review (November 2011) and the Australian Law Reform Commission’s (ALRC) Report 118 Classification - Content, Regulation and Convergent Media (March 2012).
Having examined these documents, the Tribunal is satisfied that a central aspect of Mr Tennant’s access claim, namely, the issue of the ABC’s policies underpinning the divergence of the ABC’s Code of Conduct from that of the Classification Review Board is canvassed fully in the ABC’s submission to the ALRC’s Convergence Review Interim Report. So this information is already in the public domain.
No evidence has been provided to the Tribunal that the documents relating to the classification of the TV programs which Mr Tennant claims to be under-classified, are in the public domain.
Public interest
The second of the pre-requisites, namely, that the issue of possible under-classification is one of active current debate is more finely balanced.
In relation to the question of whether under-classification of ABC TV programs is a matter of public debate, the Tribunal is aware, and takes official notice, of the fact that there is current debate on matters relating to the ABC but the debate is not about classification issues.
The history of public debate on classification indicates that, prior to the most recent inquiries, there had been little or no interest in the topic. The terms of reference for the ALRC report noted that the previous report on classification of publicly available media was twenty years ago. The latest ALRC inquiry was justified on the basis that during this period there had been a ‘rapid pace of technological change in media available to, and consumed by, the Australian community’, a tendency for convergence of communications outlets, an increase in the size of the industries generating potentially classifiable content, and greater exposure of children to a wide variety of media.[30]
[30] ALRC Classification – Content, Regulation and convergent Media – ALRC Report 118 Summary (February 2012, Terms of Reference.
The ALRC noted that the ‘Inquiry was one of a number of related inquiries taking place in Australia’ at that time, that is, in 2010 and 2011. In the course of its inquiry in 2011, the ALRC contacted over 120 representatives of relevant organisations or individuals who contributed to the ALRC’s survey.[31] That rate of participation indicates a degree of public interest in the topic.
[31] ALRC Classification – Content, Regulation and convergent Media – ALRC Report 118 Summary (February 2012, 11.
Against that apparent interest, the reports were produced over three years ago, and the government has not yet provided a response. So, while the matter may have been of interest at that time, the inaction of government since does not suggest that government is currently proposing to respond to ALRC report No 118, nor to make any decisions about any change of policies or legislation on the classification issue. Nor, as indicated earlier in paragraph 28, does the matter appear to be one of general public interest or of interest to a substantial section of the public and the Tribunal so finds.
Public benefit
The remaining pre-requisite is the statutory objective that disclosure of the requested documents would benefit the general public or a substantial section of the public. The Tribunal is not satisfied that disclosure to Mr Tennant would meet that statutory standard.
There is an argument that the operation generally of the ABC, as the only public broadcaster, consuming public funds, and providing free to air content, should be a matter of public interest. No evidence has been provided to that effect. The Tribunal is aware that although ABC News is one of the top TV news sites,[32] the other programs of the ABC and SBS between them do not attract a predominant proportion of the viewing public. Mr Tennant’s examples of claimed under-classification relate to programs other than news and this reinforces the Tribunal’s findings.
[32] Nielsen ‘Top News Websites by Unique Australian Audience – February 2014’; accessed at http: on 18 June 2014.
Nor is the Tribunal able to be satisfied that disclosure would be for the public benefit in the sense that it would better inform the understanding of, and contribute to public comment on, or participation in, the debate or the issue, or that it would contribute to government decision-making.
The objectives of the FOI Act, and the examples provided in the Guidelines reflect the implication in section 29(5) of the FOI Act that the disclosure of the documents would foster public debate. That implication underpins the examples in the Guidelines, and the case law[33] that it is disclosure to members of parliament, journalists, and interest groups which is most likely to be effective in disseminating the information and facilitating public debate.
[33] Eg Re Besser and Department of Infrastructure and Transport [2011] AICmr 2; Re Baljurda Comprehensive Consulting Pty Ltd and Australian Agency for International Development [2011] AICmr 8.
Mr Tennant has not indicated what use he intends to make of the information apart from a suggestion that it will assist him in making a submission on the issue to the Australian Communications and Media Authority (ACMA), the regulatory authority. There is no certainty that he will make that submission, nor that, if he did, it would be picked up and published by ACMA. Accordingly, his intention does not suggest that his intended use will assist public comment on, or participation in, any debate or discussion on classification issues. He has not indicated that he is a member of a group or organisation which intends to raise these issues, nor does he have a position such as a journalist, or a member of parliament which would provide him with a platform to disclose the information to others once he has access to it.[34] His interest appears to be a personal one only and is not likely to lead to active public debate on classification issues.
[34] Eg Re Briggs and Department of the Treasury (No 2) [2012] AICmr 17 at [12]; Re Besser and Department of Infrastructure and Transport [2011] AICmr 2 at [21]; Re Fletcher and Department of Broadbanc, Communications and the Digital Economy (No 3) [2012] AICmr at [12].
In summary, some of the documents requested by Mr Tennant are already in the public domain, and there appears to be no active interest by government in decision-making on classification issues. In addition, classification issues in general, or in relation to the specific TV programs nominated by Mr Tennant, do not appear to be matters of general or current public interest.
Finally the Tribunal is not satisfied that any greater access to the information will be provided if there was to be disclosure of these documents to Mr Tennant. The issue is one which is important to him, but he has not established to the satisfaction of the Tribunal that disclosure to him of the policies on program classification would assist public comment on, or participation in, the debate or discussion. For these reasons his application does not meet the requirement in section 29(5)(a) that disclosure would be in the general public interest or in the interest of a substantial section of the public, thus promoting Australia’s representative democracy.
Financial hardship
Mr Tennant has claimed that he would suffer financial hardship if required to pay the reduced charge.[35]
[35] Content, Regulation and convergent Media – ALRC Report 118 Summary Act s 29(5)(a),
The ABC contended that ‘the decision to reduce the relevant charges by 50% adequately addresses the applicant’s claim of financial hardship’; and that ‘the discretion to reduce charges pursuant to section 29 of the FOI Act was properly exercised’.
The initial charge of $575.00 was subsequently reduced to $287.50. The ABC invited Mr Tennant to reduce the scope of his initial request in which event the ABC said it would be happy to recalculate the estimate of charges. The ABC did so on the ground that there was a large amount of material already publically available and the volume of documents sought was ‘more than is reasonably necessary for the purpose of contributing to the public debate’.[36]
[36] ABC letter to Mr Tennant, dated 16 July 2012 [sic], [the year should be 2013]. The view reiterated a view expressed by the ABC in its internal review decision of 8 May 2013.
On 20 August 2013, Mr Tennant responded that he ‘was not indiscriminate in [his] selection’ and that accordingly he had not ‘requested more documents than is reasonably necessary’. He did not respond to the suggestion that he might reduce the scope of the request.
Mr Tennant has provided evidence of his financial affairs. The Tribunal is conscious of the privacy concerns relating to such matters and will deal only briefly with these issues.
The ABC, in several of its communications with Mr Tennant, acknowledged that he would suffer financial hardship if required to pay the initial charge of $575.00. Subsequently the ABC, in its reconsideration decision dated 21 November 2013, decided to reduce the charge by 50 per cent on grounds of financial hardship, a decision upheld by the Privacy Commissioner in his decision of 28 January 2014.
For the purposes of the Tribunal reconsideration of this claim, Mr Tennant provided an updated schedule of his financial position. The Tribunal has considered the updated figures in this Schedule and is satisfied that Mr Tennant remains in financial hardship.
Nonetheless, the Tribunal is not satisfied that the reduced charge of $257.50 should be waived or further reduced. The Tribunal takes into account its opinion that Mr Tennant’s claim does not meet the public interest test in section 29(5)(b) of the FOI Act. So although he may meet the financial hardship criterion in section 29(5)(a) of the FOI Act, he does not meet both pre-requisites to the exercise of the discretion in s 29.
In addition, the Tribunal is aware that the effort involved for the ABC in identifying and locating the documents Mr Tennant seeks will use considerable resources, and more than is represented by the reduced charge of $287.50. In addition, Mr Tennant can already access the policy underpinning the ABC’s separate Code of Conduct from its response to the recommendation that there be a common code of practice in this field. There is also copious material on the ABC’s website indicating its policies on issues raised by Mr Tennant.
In these circumstances, the Tribunal upholds the decision of the ABC, as confirmed by the Privacy Commissioner, that a minimum charge of $287.50 be paid by Mr Tennant prior to the ABC commencing work on identifying the documents sought.
I certify that the preceding 47 (forty – seven) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .....................[sgd]...................................................
Associate
4 July 2014
Date of hearing on the papers 17 June 2014 Applicant David Tennant Respondent Australian Broadcasting Corporation Advocate for the Respondent Grant McAvaney
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