Diane Lester and Commonwealth Scientific and Industrial Research Organisation

[2014] AATA 646

[2014] AATA  646

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0065
Re	Diane Lester
APPLICANT
And	Commonwealth Scientific and Industrial Research Organisation
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	5 September 2014
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham (Senior Member)

CATCHWORDS

Freedom of Information - documents publicly available some at cost - application of FOI Act - application of exemptions - commercial arrangements with publishers - adverse effect on operations of agency - public interest test - decision under review affirmed

LEGISLATION

Freedom of Information Act 1982

Freedom of Information (Charges) Regulations 1982

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

1. On 3 June 2013 the applicant, Dr Diane Lester made a request under the Freedom ofInformation Act 1982 (the FOI Act) for the release of publications for the last five years related to “wheat” in the category “journal articles”. In a decision dated 25 June 2013, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) decided that the request was not subject to the FOI Act as the documents were available for purchase by the public in accordance with arrangements made by the CSIRO.

2. Dr Lester subsequently applied to the Office of the Australian Information Commissioner (OAIC) for a review of the decision which exercised its discretion not to review the decision in accordance with section 54W of the FOI Act. Further to a submission from Dr Lester to the OAIC, the decision of the CSIRO was subsequently affirmed by the Privacy Commissioner on 11 December 2013. Dr Lester has now applied to the Administrative Appeals Tribunal for a review of the reviewable decision.

3. There are 303 Journal articles identified from a search of the CSIRO Research Publications Repository using “wheat” as a keyword. A table was tendered which identified the category of documents and the exemptions claimed. Of the 303 articles, 75 were identified as being available in full text and at no cost via the CSIRO repository. Dr Lester advised that she no longer pursued her FOI request for these documents. It was Dr Lester’s contention that the cost to her to access the remaining articles would be in excess of $5000, a sum of money that she simply cannot afford.  She maintained that due to this cost the articles are only available to an exclusive audience of people who can afford to pay for them.

4. The respondent submitted that this case is not about the restriction of the public’s access to information but concerns the respondent’s obligation to respect and abide by commercial arrangements by which it publishes its scientific material which is publicly available.

   ISSUES

5. The issues for to the Tribunal to determine are:

   1. Whether the documents which are the subject of Dr Lester’s request are subject to the FOI Act and should be released.; and if so

   2. Whether a charge is payable for access to the documents pursuant to the Freedom of Information (Charges) Regulations 1982.

   LEGISLATION

6. The relevant legislation is the Freedom of Information Act 1982 which in Part 1 includes as one of its objects, to give the Australian community access to information held by the Government by requiring agencies to publish the information and provide for a right of access to documents. (section 3 (1) ).

7. The provisions relied upon by the respondent are as follows:

   “Section 12  Part not to apply to certain documents:

   (1)   A person is not entitled to obtain access under this Part to:

   …

   (c) a document that is available for purchase by the public in accordance with arrangements made by an agency.

   Section 47 Documents disclosing trade secrets or commercially valuable information

   (1) A document is an exempt document if its disclosure under this Act would disclose:

   (a) trade secrets; or

   (b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

   …

   Section 47E Public interest conditional exemptions—certain operations of agencies

   A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

   (a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

   (b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;

   (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency;

   (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

   Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).”

   EVIDENCE

8. Dr Lester gave evidence and called associate Prof Alexander Holcombe from the School of Psychology with the University of Sydney. As an academic, Dr Holcombe had many years of experience in the publication of research articles. In his written statement he distinguished between the “final publisher version” that is generally held by the publisher, and the “author version” which can be made publicly available by the University or Institution. Generally the publisher version of the articles is only available by purchase which can in some cases be quite prohibitive. He said that the publication of research journal articles can yield up to a 30% profit for the publishers.

9. Dr Jack Steele, General Manager for Science Excellence and Standing with CSIRO, gave evidence on behalf of the respondent. His role requires monitoring of the standard of CSIRO’s scientific capabilities and the breadth and depth of CSIRO’s output of scientific knowledge including through CSIRO’s scientific publications and reports. One of the functions of CSIRO is carrying out scientific research, the interpretation and dissemination of information relating to scientific and technical matters, the publishing of scientific and technical reports, periodicals and papers and encouraging or facilitating the application or utilisation of the results of such research.

10. In his written statement of evidence Dr Steele said that:

    “The reputation of a scientific organisation for the excellence of its scientific output is critical for the uptake of that scientific knowledge within the global scientific community and by government, commerce and by the community. For that reason, publication of scientific articles in leading peer review journals is an essential scientific activity and a key performance indicator for scientific organisations. This reputation is critical to attract resources in order to conduct research and the development of a scientist’s career. Publications in journals are used to assess the worth of a scientist both in terms of productivity and quality.”

11. Dr Steele went on to state in his written statement that:

    “from an organisational perspective, ensuring that CSIRO’s research work is published in peer reviewed journals is vital to maintaining CSIRO’s reputation as a world leader in scientific research and the demonstrating CSIRO’s contribution to national scientific output in specific fields of science.”

12. Much of CSIRO’s scientific output is published in scientific journals which are owned by commercial publishers. Through written agreements between the publishers and CSIRO, certain conditions are invariably imposed on authors and the CSIRO in relation to the publication and use of articles that are accepted for consideration for publication and for publication.  Dr Steele stated that if the CSIRO or its scientists acted contrary to the terms of such agreements, reputational damage and possible legal consequences would flow. There is also the risk that the publishers would not engage with CSIRO scientists in the future thus jeopardising the CSIRO’s capacity to distribute its research work through commercial publications.  If CSIRO published articles contrary to an agreement with a publisher, Dr Steele said that the publisher would incur financial loss.

13. Annexed to Dr Steele’s written statement of evidence was a copy of CSIRO’s publication procedure. Dr Steele explained that given the importance of publishing CSIRO’s research work, it has a formal online system for internal approvals prior to submitting material for publication in commercial journals. This online system is known as “ePublish” which involves three main stages comprising approval, publishing and transfer of articles to the “Repository”. The Repository was established by CSIRO as a means of communicating information into the public domain consistent with CSIRO’s contractual arrangements with its commercial publishers. The Repository allows CSIRO staff and members of the public access to the reference and in some circumstances the full text of CSIRO affiliated authors’ works including published scientific journal articles, conference papers and a range of other publications.

14. Following approval of a manuscript for publication, it is common for the CSIRO and the author to enter into an agreement with the publisher in relation to copyright. A copy of CSIRO’s copyright arrangements was annexed to Dr Steele’s statement of evidence. CSIRO’s standard copyright agreement provides that CSIRO and the author assign copyright in the work to the publisher but that CSIRO retains ownership and control of all copyright with respect to the research data.

15. It was Dr Steele’s evidence that due to the nature of the commercial publication industry (a profit driven industry) for peer reviewed scientific papers, CSIRO is often prohibited from publishing articles which are published by commercial journals under an agreement with that publisher. Once an article has been published by a journal, CSIRO staff are able to access manuscripts through connecting to the publisher’s link on the Repository and are required to comply with the publisher’s conditions in relation to their use of the material.

16. Of the 303 journal articles which fell within the scope of Dr Lester’s request, Dr Steele said that a full text article was attached for 75 articles which indicates that pursuant to the agreement with the publishers, CSIRO is permitted to publish a copy of the article. A full text of the published version of 57 of the articles is available at no cost via the publisher’s website and for one article there was no link to the published version available via the repository. A full text of the published version of 170 of the articles was available at cost via the publisher’s website.  Dr Steele estimated that the total cost for access to the 170 articles available for purchase would be approximately $5140. He stated however, that CSIRO would be in breach of the agreement under which the articles were submitted for publication if it was to grant access to these articles independently of the publisher.

    CONSIDERATION AND FINDINGS

17. Dr Lester did not dispute the evidence that the subject documents are available for purchase by the public but contended that they do not fall within the provisions of subsection 12 (c) of the FOI Act because the “arrangements” were not made by the agency. She maintained that the arrangements were those of the publisher. Dr Lester states that her claim relates to the author versions of the journal articles rather than the publisher versions. Dr Lester contends that the author versions are retained by the CSIRO and should be available to the general public upon request and at no cost.

18. It was not disputed by the respondent that the author versions are retained by the CSIRO however it contended that it would be a breach of its commercial agreements with the publishers for CSIRO to release these articles to the public. Dr Lester maintained that the agreements vary between publishers and differentiate between the author and publisher versions permitting the author versions to be released to the public. Dr Lester contended that CSIRO’s refusal to grant access to the author versions which it holds, is contrary to subsection 3 (3) of the FOI Act which states that information held by the government is to be managed for public purposes and is a national resource. In her written statement Dr Lester contended that the author versions would not disclose information of commercial value but “are intended to broadcast new scientific advances to the world. Releasing them publicly would not be detrimental to the operations of CSIRO-on the contrary, it would benefit CSIRO by raising the profile of the Agency in international wheat research in the general community.”

19. The respondent submitted that the detail of “arrangements” within the context of subsection 12 (1) (c) of the FOI Act is reflected in the written agreements between the CSIRO, CSIRO authors and individual publishers. The Act does not define the term “arrangements”. According to the Macquarie Dictionary “arrangement” means: “the act of arranging; the state of being arranged; the manner in which things are arranged; a final settlement; adjustment by agreement; (usually plural) preparatory measures; previous plan; preparation.” It was contended by the respondent that the ordinary dictionary meaning of “arrangement” suggests that the term encompasses a broad array of understandings or agreements reached between parties and would include those of a commercial nature. Further that the CSIRO engages in the act of arranging for the publication of articles by entering into agreements with publishers for the publication of those articles.

20. The evidence was that when the preprint version is supplied to the publisher under the arrangement, it is the intention that this document will be made available for purchase by the publisher in the course of the publisher’s business. The publisher may choose to make minor editorial or formatting changes in the process of publication and it is essentially the preprint document that is made available for purchase. The respondent contended that section 12 (1) (c) applies equally to the published version as well as the preprint version.

21. It was submitted by the respondent that a purposive approach be adopted for the meaning of section 12 (1) (c) and that regard should be had to the Explanatory Memorandum to the 1981 Freedom of information Bill which contains the following discussion regarding section 12 (1) (c):

    “Part 3 does not give a right of access to documents which are otherwise available to the public. This sub clause specifies three main classes of such documents: …

    The third class comprises documents that are otherwise available for purchase by the public, for example, from the Australian Government Publishing Service.

    The rationale of this clause is that, where statutory provisions or other arrangements exist that provide from the means of access to particular documents, it would be inappropriate for access to be granted under the Freedom of information legislation rather than under those statutes or arrangements.”

22. The above statement suggests that the intention of section 12 (1) is to exclude those documents that are available via other means. The documents in issue in this case are available to the public albeit in accordance with arrangements made between the agency and the publisher.

23. Dr Lester withdrew her request for access to the 75 documents which are available to the public on the CSIRO repository at no charge. Dr Lester maintained her request for access to the 170 documents that are available at cost via the publisher’s website, the link being provided on the repository. Dr Lester also maintained her request for access to some 57 documents that are available at no charge via the publisher’s website through the link provided on the Repository on the basis that the preprint/author version is stored on the CSIRO repository but is not made available to the public. There was one document for which no link to the published version was available via the repository but the preprint/author version was stored on the repository but not available to the public. Dr Lester maintained that the public should have access to all of the preprint/author version articles stored on the CSIRO repository.  She contended that knowledge of the activities of the CSIRO is in the public interest and that this can be obtained by public access at a reasonable cost to the scientific articles prepared and written by CSIRO scientists. Dr Lester referred to the American system where copyright restrictions are quite different and public access to scientific research such as scientific articles is freely available and seen as a national resource.

24. Dr Lester contended that the “arrangements” are not “made by” the agency but by the publisher. It is the publisher who sets the fee which can vary between $10 and $40 for each article.  The evidence was that there are a variety of arrangements that are entered into between the CSIRO and the publishers which are dependent upon a number of factors. In some cases the arrangement enables the CSIRO to make full text copies of the preprint/author version available to the public on the repository at no charge which is the case for 75 of the 303 articles requested by Dr Lester.

25. Whilst it is the publisher who sets the fee and places certain conditions on authors and the CSIRO in relation to the publication and use of articles, the Tribunal does not accept that such terms and conditions are unilaterally imposed without the sanction or agreement of CSIRO.  The CSIRO accepts such terms and conditions as part of the agreement with the publisher and ensures that its employees abide by the terms of any agreement in accordance with the agency’s Code of Conduct and internal copyright policies, copies of which were annexed to Dr Steele’s witness statement. Also annexed was a sample of a standard CSIRO release agreement which assigns any right title and interest of the CSIRO and the author in the work’s copyright to the publisher.

26. Whether it is the publisher or the agency which dictates the terms of an arrangement is of little consequence where an arrangement has been freely entered into and is of mutual benefit. The term “arrangement” contemplates a broad array of understandings or agreements between parties as described in the evidence of Dr Steele.  The evidence was that CSIRO from time to time does seek to negotiate the terms of the arrangements and has its own standard form of agreement which is used on occasions.

27. It is acknowledged that the commercial publishing of scientific articles is a controlled and highly lucrative business. The prices of the various articles requested by Dr Lester varied between $20 and $40 however it was the volume of the articles requested that made the exercise of obtaining them through the publisher prohibitive for her. The cost of access is not however an issue for consideration by the Tribunal. Subsection 12 (1) (c) contemplates that the document is available to the public at a cost. In this case the relevant arrangement is that between CSIRO and the publishing body by which the CSIRO agrees to provide the article and the publisher agrees to publish it in their journal subject to the CSIRO’s agreement about how they will deal with the preprint/author version.

28. For all of the above stated reasons and in accordance with the clear guidance provided in the Explanatory Memorandum, the Tribunal determines that Dr Lester’s request for access to the 170 documents which are available at cost via the publisher’s website clearly falls within the provisions of sub section 12 (1) (c). The request is accordingly excluded from the operation of the FOI Act.

29. There are 57 other documents that form the subject of Dr Lester’s request that were available at no cost via the publisher’s website and one for which no published version was available. It was argued by the respondent that this request falls within the provisions of sections 47 and/or 47E (d) of the FOI Act.

1. It was contended by the respondent that releasing documents to the applicant which are available for purchase by the publishers website would also be exempt under section 47 (1) (b) of the FOI Act in that such actions would diminish the commercial value of those articles and likely to result in harm to the CSIRO’s research operations. In addition to retail value, the articles have a broader commercial value to the publishers in attracting a readership which in turn generates sales and other financial benefits such as goodwill or sponsorship opportunities.

2. It was argued that if the CSIRO provided free access under the FOI Act to journal articles available for purchase from the publisher, the commercial value of those articles to the publisher would be diminished in two senses. Firstly, the publisher would not receive the retail return had the article been purchased from it in the normal way and secondly, in providing access to articles via CSIRO rather than by the publishers own means, client traffic to the publisher would be diminished.

3. The above submissions were supported by the evidence from Dr Steele and are accepted by the Tribunal. Given the nature of the commercial arrangements made between the CSIRO and the publishers which are confirmed by written agreement, the Tribunal is satisfied that the commercial value of articles that are available at cost via the publisher’s website could reasonably be expected to be destroyed or diminished.

4. It is less clear however, that the release by CSIRO of articles that are available at no cost via the publisher’s website would fall within the provisions of sub section 47 (1) (b) as the commercial value of such information may not be significant.

5. The Tribunal does accept that if the CSIRO had entered into an arrangement which does not allow for the release of articles via its own repository that have been submitted for publication, that the commercial arrangement with the publisher may be jeopardised. To this end the provisions of section 47E have application in that if CSIRO was to release the articles in breach of its commercial arrangement with the publisher, there is the very real potential for a substantial adverse effect on the proper and efficient conduct of the agency’s operations in that the publisher may terminate its commercial arrangement with the CSIRO. Other publishers may also decline to enter into commercial arrangements with the CSIRO because it had breached an agreement with another publisher. Any breach of an agreement with a publisher may discourage other publishers from entering into arrangements with the CSIRO thus jeopardising CSIRO’s ability to publish its research work in the future.

6. Subsection 11 A (5) provides that an agency”

   “must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance be contrary to the public interest”.

   The exemptions provided for in section s 47 (1) (b) and 47E of the FOI Act are conditional exemptions and subject to this provision. Whilst it is accepted that release of the requested documents would be consistent with the objects of the FOI Act, it is a question of balance as to whether release of the documents to the applicant constitutes release to the public as provided for in section 11C, is in the public interest.

7. Public interest exemption factors are listed in section 11B of the FOI Act and apart from the reference to section 3 which is referred to above, none of these factors are of much assistance in this case. Subsection 11B (5) provides that in assessing public interest, the agency must have regard to any guidelines issued by the Information Commissioner. The Tribunal was referred to the Information Commissioner’s Guidelines and in particular those pertaining to conditional exemptions. At paragraph 6.9 the Guidelines provide:

   “To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies, based on the particular facts of the matter at the time the decision is made.”

8. It was submitted by the respondent that the ultimate consequence of an inability by the CSIRO to publish research would diminish the standing of the CSIRO and its capacity to attract and retain top scientific talent. The Tribunal accepts that such a consequence is not in the public interest. It is also notable that each and every document that is the subject of Dr Lester’s request is available either for a fee or at no cost otherwise than under the FOI Act. In other words the articles are currently publicly available. The Tribunal considers that any argument that it is in the public interest to release these documents under the FOI Act cannot be maintained because of the very real risk of substantial adverse effect on the capacity of the CSIRO to publish its research material, likely detriment to its standing in the scientific arena and its ability to attract and retain top scientific talent.

9. In conclusion the Tribunal affirms the reviewable decision that the documents are excluded from the FOI Act on the basis that they are available for purchase by the public in accordance with arrangements made by the CSIRO and for those documents that are available free of charge, those documents are exempt under section 47E.

10. The decision under review is accordingly affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

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Administrative Assistant

Dated

Date(s) of hearing	29 July 2014
Applicant	In person
Counsel for the Respondent	Justin Davidson, AGS