Donaldson and Department of Defence
[2001] AATA 853
•12 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 853
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/229
GENERAL ADMINISTRATIVE DIVISION )
Re ERIC AND JUDITH DONALDSON
Applicant
And DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date12 October 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............................................
R G Kenny
Member
CATCHWORDS
FREEDOM OF INFORMATION – Department of Defence – waiver of application fee – public interest
Freedom of Information Act 1982 s 29(5)
Defence (Areas Control) Regulations 1989
Freedom of Information (Fees and Charges) Regulations 1982
Re Bartl and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 54 ALD 509
Attorney-General (NSW) v Quin (1990) 64 ALJR 327
Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473
Lion Laboratories Ltd v Evans & Ors [1985] QB 526
Herald and Weekly Times and Secretary, Department of Finance and Administration [2000] AATA 506
Re Paterson and Australian Bureau of Statistics (1994) 33 ALD 635
Mulder and Commonwealth Director of Public Prosecutions [2001] AATA 546
REASONS FOR DECISION
12 October 2001 Mr R G Kenny, Member
Background
This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of an application to review a decision, dated 21 September 2000, of the Department of Defence (the respondent) in which it was determined that there be no waiver of a charge imposed under section 29 of the Freedom of Information Act 1982 (the FOI Act) in relation to the granting of access to certain documents in the possession of the respondent.
The matter was heard in the absence of the parties in accordance with section 34B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which reads:
"34B Circumstances in which hearing may be dispensed with
If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing."
At a conference held on 24 May 2000, both parties confirmed that they would consent to the matter proceeding without a formal hearing subject to an exchange between them of written submissions. In evidence before me were submissions from the applicant, dated 17 July 2001, and from the respondent, dated 3 July 2001 and 24 July 2001. Also in evidence were documents from the applicant and respondent, dated 28 August 2001 and 25 May 2001, respectively, consenting to the matter being dealt with in their absence. On that basis and being satisfied in accordance with the terms of section 34B of the Act that the review can be adequately determined in the absence of the parties, I considered that this was an appropriate course and proceeded, accordingly.
By letter dated 11 May 2000 (T3), the applicants lodged, in accordance with the FOI Act, a request with the respondent seeking access to the following documents in relation to the Amberley Royal Australian Air Force (RAAF) Base, the Richmond RAAF Base and the Oakey Army Base:
"all the records and paperwork, including but not limited to, all internal memorandums, communications and notes of communication, relevant to any action/s taken by the Department of Defence to remove any obstacles (including the lopping of trees) within a 15 m height restriction area under Height Control Restrictions between 1997 and the present date."
By letter dated 2 June 2000 (T4), the respondent advised the applicants that, based on the estimates of times necessary to process the request, its preliminary assessment of the charge to be imposed under the FOI Act was $1,830.00 and that a 25% deposit needed to be paid before the processing of the request could be commenced.
By letter dated 14 June 2000 (T5), the applicants contended that the processing charge should not be imposed. However, by letter dated 24 July 2000 (T8), the respondent advised that it would not waive the charge.
By letter dated 9 August 2000 (T9), the applicants appealed this decision under section 54 of the FOI Act and this led to the decision under review, dated 21 September 2000 (T11), in which the respondent again refused to waive the charge.
By application dated 2 March 2001 (T1), the applicants sought review of that decision by the Tribunal.
By letter dated 12 March 2001 marked "without prejudice" (T12), the applicant proposed, in order to avoid delay in processing the application, paying the estimated processing charges but reserving their right to appeal to the Tribunal on the issue of waiver. The respondent advised by letter dated 19 March 2001 (T13) that it did not object to that course of action and the matter has proceeded in that way.
By letter dated 14 May 2001, the respondent revised the amount of the charge to $542.26. As I understand it, the reason for the reduction of the charge was that the processing costs were significantly lower than initially thought to be likely. The respondent advised that no documents were found in relation to the applicants' request for the Oakey or Richmond installations and that only four documents were identified in relation to the RAAF Base Amberley. The letter also revealed that these documents were disclosed to the applicants as an attachment.
EvidenceIn evidence before me were the T documents, as noted above, Statements of Facts, Issues and Contentions submitted by the parties, the written submissions of the applicant and respondent and the letter of 14 May 2001, also noted above.
Legislative FrameworkFor the purpose of promoting safety in aircraft movements around military airfields in Australia, the Defence (Areas Control) Regulations 1989 provide for limits on the height of buildings and objects, including trees, that are located within a specified distance of such an establishment. The regulations enable the respondent to set in train procedures which lead to the removal of such buildings and objects and also make provision for affected persons to make objection to the process and, in the event of such removal, for compensation to be paid to those persons.
The FOI Act makes provision for persons in the applicants' position to gain access to documents in the possession of bodies such as the respondent and it also sets out grounds upon which such access may be refused. Sub-section 29(1) of the FOI Act enables a charge to be imposed in respect of a request for access or provision of access to a document. The scale of fees is set out in the Freedom of Information (Fees and Charges) Regulations 1982 (the Regulations). In the circumstances set out in sub-section 29(5) of the FOI Act, these charges may be reduced or waived. The provision reads:
"Without limiting the matters the Agency or Minister may take into account in determining whether or not to reduce or not to impose the charge, the Agency or Minister must take into account:
(a)whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and
(b)whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public."
In this case, the respondent advised the applicant that a charge calculated in accordance with the Regulations and based on an estimate of search, retrieval and decision-making time was a maximum of $1,830. The applicant seeks to rely on the terms of paragraph 29(5)(b) of the FOI Act on the basis that giving access to the documents in question would be in the general public interest or in the interest of a substantial section of the public.
The matter comes before the Tribunal in accordance with the terms of Part VI of the FOI Act, in particular section 55 thereof. The powers of the Tribunal in this matter are set out in sub-sections 58(1) and (7) of the FOI Act and it is noted that, pursuant to sub-section 61(1) of the FOI Act, the onus of establishing that a decision to impose the charge is justified rests with the respondent: see Re Bartl and Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 54 ALD 509 at 520.
Issue for determination
In this matter, there is no dispute concerning whether or not there should be disclosure of the documents in question. Further, there is no dispute concerning the application of the Schedule in the Regulations to the calculation of the charge. In the applicants' written submission, they stated that they did not dispute that the respondent provided the documents at the lowest reasonable costs. The only issue for determination is whether or not the charge imposed by the respondent should be waived.
The only basis relied on by the applicant for seeking waiver is that set out in paragraph 29(5)(b) of the FOI Act, ie the "public interest" ground. The respondent submitted that, if the public interest ground was made out, this alone was not sufficient to justify waiver of the charge. Rather, it was submitted that it would then be necessary to determine whether or not there would be financial hardship if the charge were not waived and that, only if there were such hardship could there be waiver. No authority was cited for this proposition but reference was made to the use of the conjunction "and" which is interposed between the two paragraphs in sub-section 29(5) of the FOI Act which is set out above. On the other hand, the applicant submitted that, if the public interest ground was made out, it was not necessary to then consider the financial circumstances as each component of sub-section 29(5) should be considered as an independent basis for waiver. Clearly, this matter becomes relevant only if the Tribunal finds that the charge should be waived on the basis of the "public interest" ground.
Submissions on the "public interest"
The applicantsThe applicants submitted that, as owners of 17 properties in the area around one of the nominated installations, they were affected by the height restrictions in the Defence (Areas Control) Regulations in that their land was rural residential or residential with subdivision potential and most of their properties currently have eucalyptus trees in excess of 15 metres high growing on them. They submitted that there was a public interest in ensuring that an affected citizen in compensation negotiations is permitted access to information that would assist them in assessing whether or not fair compensation is offered. They submitted that negotiations with a government agency, such as the respondent, should not proceed on inadequate knowledge and be founded on "half-light", but rather that the process should be as transparent as possible.
The applicants also submitted that the release of the requested information is in the public interest as it would help to ensure that the respondent remains accountable and to ensure that individuals are being treated fairly and in accordance with the law in their dealings with the respondent.
Further, the applicants referred to similar "previous FOI requests" where the respondent had agreed that the release of information was in the public interest and submitted that the respondent was being inconsistent in its approach on the matter. No specific references were made to these other occasions.
The applicants submitted that a public interest exists when the benefit to the public at large of disclosure outweighs the benefit of withholding the information. They noted that the onus of proof was on the respondent and submitted that access to the documents in question would clearly be in the public interest, that the respondent had not detailed any benefits of withholding the information and that the processing charges should be waived.
The applicants also noted that the respondent's submissions had made reference to the fact that the requested documents had actually been provided to them and they submitted that this was a matter which the respondent should not be able to rely on. This was because the release came about as a result of a "without prejudice" agreement between the applicants, who agreed to pay the relevant charge on a conditional basis, and the respondent, who agreed to release the document subject to the condition which was that the monies would be refunded if this Tribunal found in favour of the applicants.
The respondent
In relation to the "public interest" and the imposition of a charge, the respondent contended that this matter is a personal one between the applicants, as affected landowners, and the respondent and that, generally, only a small number of landowners were affected by the height control limits. In that case, such matters were not in the general public interest and, because of the small number of people affected, it could not be said that there was an interest in a substantial section of the public.
The respondent contended that the object of the FOI Act, as set out in section 3 thereof, is to extend as far as possible the right of the community to access to information in the possession of the government by making available to the public information about the operations of departments, ensuring that rules and practices affecting members of the public in their dealings with government departments are readily available, creating a general right to access to information in documentary form. However, it was also contended that the intention is to do this in a way which promotes disclosure of information promptly and at the lowest reasonable cost.
As noted above, in paragraph 17 of these reasons, the respondent has also submitted that both of the components of sub-section 29(5) of the FOI Act must be met as a precondition to the waiver of any charge.
Discussion of evidence/submissions
19.In their submissions, the applicants and respondent have each made reference to the purpose of the height restrictions and the need for the types of controls that are found in the Defence (Areas Control) Regulations. That is not in issue in this matter.
20.Section 3 of the FOI Act sets out its purpose in the following way:
"(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and
(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information."
Clearly, decisions to impose prohibitively high charges and then not to waive those charges could amount to a barrier which would have the potential to lead to a limitation on disclosure inconsistent with the objects of the FOI Act. That could be overcome by reliance on the financial hardship ground for waiver. Further, control on the imposition of excessive charges is found in the fact that a scale of charges is provided for in the Regulations. In this case, the applicants have conceded that the respondent has acted reasonably in assessing the relevant charge.
The FOI Act provides no guidance as to the nature or extent of the reference to the term "public interest" in paragraph 29(5)(b) though guidelines for the operation of the provision have been published by the Attorney-General: see and, for comment on the guidelines, Mulder and Commonwealth Director of Public Prosecutions [2001] AATA 546 at paragraph 40.
Cases referred to by both the applicant and respondent included several which were related to the appropriateness or otherwise of disclosure of requested documentation under both the FOI Act and equivalent legislation in the Australian States. Again, the matter of whether or not there should be disclosure is not directly in issue here, although provision is made for non-disclosure on public interest grounds. That is set out in paragraph 36(1)(b) of the FOI Act which provides that a document will be exempt from disclosure if such disclosure "would be contrary to the public interest". The withholding of a document under that provision is required unless disclosure would be contrary to the public interest. That provision has a different emphasis than does paragraph 29(5)(b) of the FOI Act in respect of charges. Once a decision has been made to disclose a document, a factor to be considered in deciding whether or not to impose a charge is whether the giving of access to it would be "in the general public interest or in the interest of a substantial section of the public". Therefore, the question for the Tribunal is whether it can be said in this case that the giving of access to the applicants of the documents pertaining to the land around the Amberley RAAF Base is in the general public interest or in the interest of a substantial section of the public.
The interests alleged by the applicants are set out in paragraphs 18 to 21 of these reasons. These are to ensure that the agency remains accountable for its actions; to ensure consistency in the respondent's decision-making processes; and to provide assistance to an individual in undertaking compensation negotiations with the relevant government agency by ensuring that negotiations are conducted on a transparent basis.
25.As to the first of those matters, the accountability of the respondent is measured by the fact of the disclosure of documents, rather than by its decision to impose a charge, set at a reasonable level in accordance with the Regulations, for that disclosure process to be exercised.
26.As to the second of the matters, I see no inconsistency as referred to by the applicants. The decision to release the documents carries with it the necessary implication that to do so was not contrary to the public interest. It does not follow that the granting of access by that release is in the public interest or in the interest of a substantial section of the public. The former enquiry relates to whether there was any public interest which vitiated against release; the latter enquiry relates to whether, in a positive sense, there is some public interest rather than some private interest in doing so.
27.As to the third of the matters, the interest described concerning a compensation claim is an individual interest of the applicants. Of course, the mere fact that it is an individual interest does not necessarily preclude it from coinciding with a public interest: see Attorney-General (NSW) v Quin (1990) 64 ALJR 327 at 333. However, to be in the public interest, the matter must be broader than that of the interest of the individual. The matter was referred to in Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473 where, at 480, Barwick CJ said that "the interest, of course, must be the interest of the public and not mere individual interest which does not involve a public interest".
28.Further, it is not sufficient that access be of interest to the public, which raises different considerations from those relating to whether a matter is in the public interest: see Lion Laboratories Ltd v Evans & Ors [1985] QB 526 Griffiths LJ at 553. It may well be of interest to the public that procedures are in place to assist in setting a ceiling on the height of structures around military bases where aircraft movement takes place. But that is a different matter from there being a general public interest in allowing access to documents concerning those matters: see Re Paterson and Australian Bureau of Statistics (1994) 33 ALD 635 at 641.
29.In Herald and Weekly Times and the Secretary, Department of Finance and Administration [2000] AATA 506, the issue of whether a charge should be waived under paragraph 29(5)(b) on public interest grounds was considered by the President of the Tribunal, O'Connor J, who said, at paragraphs 47 and 48:
"In exercising this discretion it is, in my view, important for the Tribunal to be satisfied that the documents, if released, would come to the attention of the public or a significant section of the public, and also to come to a conclusion as to whether the disclosure would add to that which is already publicly known…….
Section 29 establishes the prima facie position that charges should be imposed so that applicants contribute to the cost of processing all their requests and section 24 reflects parliamentary concern that it is not in the public interest for any department to be required to process requests which would substantially and unreasonably divert its resources from its other operations."
In this case, no general public interest has been identified by the applicant which would be advanced in any way by the granting to them of access to the documents in question. Certainly, there is no evidence that the public would become aware of the information in the manner referred to by O'Connor J. Moreover, there is no evidence which identifies a substantial section of the public which would be similarly advantaged or made aware of the information. The respondent has maintained throughout that the interest of the applicants is an individual interest related to their specific negotiations concerning compensation. The Tribunal accepts the correctness of the respondent's submissions in that regard and is reasonably satisfied that the respondent has discharged its onus of proof that the giving, to the applicants, of access to the relevant documents is not in the general interest of the public or of a substantial section of the public; but that, rather, it was for their own private interests relating to compensation.
The matter of financial hardship as a ground for waiver of the charges was not raised by the applicant and there is no evidence before the Tribunal which would suggest that that ground is met. The applicants did refer to the ground but only on the basis that the respondent should not be permitted to rely on the fact that the charge had been paid, albeit on a conditional basis, in order to demonstrate that there was no financial hardship. That is now of no relevance because of the Tribunal's decision about the public interest ground. In other words, it is not necessary for the Tribunal to consider the matter of whether or not both paragraphs 29(2)(a) and (b) must be met before a charge can be waived or reduced.
DecisionThe decision to refuse to waive or reduce the charge imposed on the applicants is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: .....................................................................................
AssociateDate of Decision 12 October 2001
Hearing on the papers
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