Herald and Weekly Times and Department of Finance and Administration - [2000] AATA 506

DECISION AND REASONS FOR DECISION [2000] AATA 506

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/370
No A1998/193

GENERAL ADMINISTRATIVE DIVISION )

Re HERALD AND WEEKLY TIMES
Applicant

And SECRETARY, DEPARTMENT OF FINANCE AND ADMINISTRATION
Respondent

DECISION

Tribunal Justice O'Connor, President

Date22 June 2000
PlaceCanberra

Decision The Tribunal: Affirms the decision of 31 March 1998 to refuse to waive or reduce a charge imposed under section 29 of the Freedom of Information Act 1982; and Sets aside the decision of 30 September 1999 to refuse to grant access to the documents requested pursuant to section 24 of the Freedom of Information Act 1982

..............................................
President
ADMINISTRATIVE APPEALS TRIBUNAL

No.A1998/193 and A1999/370

GENERAL ADMINISTRATIVE DIVISION

Re:HERALD & WEEKLY TIMES

Applicant

And:SECRETARY, DEPARTMENT OF FINANCE AND ADMINISTRATION

Respondent

TRIBUNAL: Justice D F O'Connor, President

DATE: 12 July 2000

PLACE: Canberra

Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the statement of reasons provided to the parties on 23 June 2000 in accordance with the following directions:

In paragraph twenty seven of the statement of reasons, in the penultimate line of that paragraph, insert "applicant" such that the completed sentence reads: "…saved had the applicant had information about …".

........................................................
PRESIDENT

FREEDOM OF INFORMATION Refusal of access to documents under section 24 – waiver or reduction of charge imposed under section 29 – Public interest in disclosure – Adequacy of consultation to narrow scope of request
Freedom of Information Act 1982 ss 3, 24, 29, 66

Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1993) 33 ALD 171
Re Finlayson and Family Court of Australia (unreported AAT decision, AAT 13302, 21 September 1998)
Re Radicic and Australian Postal Corporation (unreported AAT decision, AAT 13188, 27 July 1998)
Horne v Barber (1920) 27 CLR 494
Attorney-General v Times Newspapers [1974] AC 273
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Cunliffe v The Commonwealth (1994) 182 CLR 272
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

REASONS FOR DECISION

Justice O'Connor, President

In this matter two applications have been made pursuant to subsection 29(1) of the Administrative Appeals Tribunal Act 1975. They seek review of:
(i)A decision to refuse to grant access to the documents requested pursuant to section 24 of the Freedom of Information Act 1982 ("FOI Act").
(ii)A decision to refuse to waive or reduce a charge imposed under section 29 of the FOI Act.

Background

On 15 April 1997 the applicant requested from the respondent access to "… all documents relating to travel, accommodation and entertainment by all Members of both the House of Representatives, the Senate and their respective staffs" for the period January 1992 to the date of the request. After initially advising the applicants that the respondent was considering the application of section 24 of the FOI Act the applicant reduced the scope of its request to a period of almost three years from March 1993 to June 1996.
On 17 July 1997 the respondent notified the applicant's solicitors of the decision to refuse this request under section 24 because to proceed would be a substantial and unreasonable diversion of its resources.
On 29 August 1997 the applicant's solicitors wrote to the respondent seeking to further reduce the scope of the request to information relating to expenses incurred by Ministers while on overseas travel, including information relating to overseas study travel, access to records and invoices relating to official hospitality, access to correspondence received by Ministers from Senators and Members seeking advice or use of discretion in relation to the entitlements, responses and records of travelling expenses taken by Senators and Members, their spouses or nominees, staff and independent children. The applicant further limited the time frame of its request to the period from September 1994 to September 1997.
On 12 September 1997 the respondent wrote to the applicant stating that the previous FOI request had lapsed and that a fresh request in the terms now sought would again be likely to be considered under section 24 of the FOI Act.
On 20 October 1997 the applicant's solicitors lodged a new FOI request seeking access, among other things, to information within files relating to the expenses incurred by Ministers whilst on overseas visits and access to information relating to the activities and expenses of Parliamentarians and staff incurred during overseas study travel.
Thereafter the respondent made a primary estimate of charges, as required under section 29 of the FOI Act, amounting to $56,564.10. A deposit of $14,141 was requested from the applicant who was advised of its right to seek review of remission of the charges and, in addition, also invited to refine the request as it then stood.
On 27 November 1997 the applicant replied that it would limit the scope of its request to " … the last eighteen months of the Labor Government and the first eighteen months of the Coalition Government following the change of government in March 1996". The applicant sought remission of a substantial portion of the estimated charges, submitting that access would be in the public interest. The applicant also sought a detailed accounting of the decision-making time set out in the estimate provided with the preliminary charges.
The parties then proceeded to revise the scope of the request and, in relation to the calculation of the decision making time set out in the respondent's estimate of the preliminary charges, took the following steps.

.15 December 1997              respondent sought confirmation by the applicant of a narrower scope of request and offered to reassess the preliminary estimate of charges. The respondent provided an explanation of calculation of decision making time.
.24 December 1997              applicant confirmed the request and sought a short explanation of 'search and retrieval time' set out in the preliminary assessment of charges and repeated its application for remission of charges
.9 January 1998  respondent provided a preliminary estimate of charges in relation to the amended FOI request which now amounted to $41,359.00 with a deposit of $10,339.75 requested. A short explanation of 'search and retrieval time" was provided.
.29 January 1998                   applicant was notified of respondent's decision to refuse the application for remission of charges on basis that the public interest had not been made out.
.3 February 1998                   applicant contended that respondent's preliminary estimate of charges had been wrongly assessed.
.10 February 1998                 applicant asked for a formal decision on the 'request for remission on the further ground that the charge had been wrongly assessed'.

On 27 February 1998 the applicants sought an internal review of the following decisions of the respondent, pursuant to section 54 of the FOI Act:
(i)the preliminary assessment of the charge;
(ii)the amount of the deposit; and
(iii)that the charge would be imposed and would not as a discretionary matter be reduced under subsection 29(4)
On 31 March 1998 the applicant was notified of the respondent's decision on internal review which was to refuse the request for remission in full or in part. The respondent also determined on internal review that, in relation to the claim that the charges had been wrongly calculated, it considered that it was likely that in processing the claim it would be necessary to consult substantially more people than had been allowed for in the original decision and, as a result, the estimate under challenge may have significantly understated the real cost of meeting the applicant's request.
On 18 June 1998 the applicant lodged an application with the Administrative Appeals Tribunal seeking review of the decision:
(i)that the applicant is liable to pay a charge; and
(ii)the calculation of that charge.

The application sought to have the charge waived or reduced.

During the course of preparation of this matter for hearing before the AAT the respondent informed the applicant that it now proposed to consider this request under section 24 of the FOI Act. This consideration, however, had not been undertaken at the time when the matter was listed for hearing before the AAT on 11 August 1999.
After hearing evidence from the parties in relation to the section 29 matter relating to the charges, the Tribunal adjourned the hearing to allow the respondents to complete its consideration of the matter under section 24 of the FOI Act. The parties agreed to a timetable to facilitate this process.
On 14 September 1999 the respondent refused to grant access to the documents sought on the basis that the work involved in processing the request would substantially and unreasonably divert the resources of the Department of Finance and Administration from its other operations, pursuant to subsection 24(1) of the FOI Act.
On 30 September 1999 the respondent on internal review made a decision refusing to grant documents in accordance with the applicant's request without having caused the processing of the request to be undertaken, again for the reason that the work involved in processing the request would substantially and unreasonably divert the respondent from its other operations.
The applicant appealed from this decision to the AAT by application dated 7 October 1999. When the Tribunal resumed on 25 October 1999, this appeal was listed in conjunction with the part heard application referred to above.
The Tribunal heard further evidence in relation to the refusal to grant access decision under section 24 and then heard submissions from the parties in relation to both applications.
It was common ground that if the applicant was unsuccessful in challenging the decision under section 24 then there would be no purpose in proceeding to review the decision made under section 29. I therefore propose to consider the decision to refuse access first, although made later in time.
Relevant Legislation
Freedom Of Information Act 1982
Section 24 Requests may be refused in certain cases
24 (1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:
(a)in the case of an agency — would substantially and unreasonably divert the resources of the agency from its other operations; or
(b) in the case of a Minister — would substantially and unreasonably interfere with the performance of the Minister's functions.
(2) Subject to subsection (3) but without limiting the matters to which the agency or Minister may have regard in deciding whether to refuse under subsection (1) to grant access to the documents to which the request relates, the agency or Minister is to have regard to the resources that would have to be used:
(a)in identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or
(b)in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used:
(i)in examining the documents; or
(ii)in consulting with any person or body in relation to the request; or
(c)in making a copy, or an edited copy, of the documents; or
(d)in notifying any interim or final decision on the request.
(3) The agency or Minister is not to have regard to any maximum amount, specified in regulations, payable as a charge for processing a request of that kind.
(4) In deciding whether to refuse, under subsection (1), to grant access to documents, an agency or Minister must not have regard to:
(a)any reasons that the person who requests access gives for requesting access; or
(b)the agency's or Minister's belief as to what are his or her reasons for requesting access.
(5) An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if:
(a)it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and
(b)either:
(i)it is apparent from the nature of the documents as so described that no obligation would arise under section 22 in relation to any of those documents to grant access to an edited copy of the document; or
(ii)it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document.
(6) An agency or Minister must not refuse to grant access to a document:
(a)on the ground that the request for the document does not comply with paragraph 15(2)(b); or
(b)under subsection (1); unless the agency or Minister has:
(c)given the applicant a written notice:
(i)stating an intention to refuse access; and
(ii)identifying an officer of the agency or a member of staff of the Minister with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal; and
(d)given the applicant a reasonable opportunity so to consult; and
(e)as far as is reasonably practicable, provided the applicant with any information that would assist the making of the request in such a form.
(7) For the purposes of section 15, the period commencing on the day an applicant is given a notice under paragraph (6)(c) and ending on the day the applicant confirms or alters the request following the consultation referred to in subsection (6) is to be disregarded in the computation of the 30 day period referred to in section 15.
…
Section 29 Charges
29 (1) Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge (not being an application fee) in respect of a request for access to a document, or the provision of access to a document, the agency or Minister must give to the applicant a written notice stating:
(a)that the applicant is liable to pay a charge; and
(b)the agency's or Minister's preliminary assessment of the amount of the charge, and the basis on which the assessment is made; and
(c)that the applicant may contend that the charge has been wrongly assessed, or should be reduced or not imposed; and
(d)the matters that the agency or Minister must take into account under subsection (5) in deciding whether or not to reduce, or not impose, the charge; and
(e)the amount of any deposit that the agency or Minister has determined, under the regulations, that the applicant will be required to pay if the charge is imposed; and
(f)that the applicant must, within the period of 30 days, or such further period as the agency or Minister allows, after the notice was given, notify the agency or Minister in writing:
(i)of the applicant's agreement to pay the charge; or
(ii)if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both—that the applicant so contends, giving the applicant's reasons for so contending; or
(iii)that the applicant withdraws the request for access to the document concerned; and
(g)that if the applicant fails to give the agency or Minister such a notice within that period or further period, the request for access to the document will be taken to have been withdrawn.
(2) If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f) within the period or further period mentioned in that paragraph, the applicant is to be taken to have withdrawn the request for access to the document concerned.
(3) An agency or Minister must not impose a charge in respect of a request for access to a document, or the provision of access to a document, until:
(a)the applicant has notified the agency or Minister in a manner mentioned in paragraph (1)(f); or
(b) the end of the period or further period mentioned in that paragraph.
(4) Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed.
(5) 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.
(6) If the applicant has notified the agency or Minister in the manner mentioned in subparagraph (1)(f)(ii), the agency or Minister must take all reasonable steps to enable the applicant to be notified of the decision on the amount of charge payable as soon as practicable but in any case no later than 30 days after the day on which the applicant so notified the agency or Minister.
(7) If:
(a)that period of 30 days has elapsed since the day on which the agency or Minister was so notified; and
(b)the applicant has not received notice of a decision on the amount of charge payable;
the principal officer of the agency, or the Minister, as the case requires, is, for all purposes of this Act, taken to have made, on the last day of the period, a decision to the effect that the amount of charge payable is the amount equal to the agency's or Minister's preliminary assessment of the amount of the charge mentioned in paragraph (1)(b).
(8) If:
(a)the applicant makes a contention about a charge as mentioned in subsection (4); and
(b)the agency or Minister makes a decision to reject the contention, in whole or in part;
the agency or Minister, as the case requires, must give the applicant written notice of the decision and of the reasons for the decision.
Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.
(9) A notice under subsection (8) must also state the name and designation of the person making the decision and give the applicant appropriate information about:
(a)his or her rights with respect to review of the decision; and
(b) his or her rights to make a complaint to the Ombudsman in relation to the decision; and
(c)the procedure for the exercise of those rights;
including (where applicable) particulars of the manner in which an application for review under section 54 may be made.
(10) Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision referred to in subsection (8).
(11) A notice under subsection (8) is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.

Regulation 14 of the Freedom Of Information (Fees And Charges) Regulations states:

Reg 14 Deposit not to be refunded
14. A deposit paid by an applicant on account of a charge or charges, or any part of such a deposit, shall not be refunded to the applicant otherwise than in compliance with a decision to remit in whole or in part the charge or charges.

The applicant also made submissions relating to costs under the FOI Act:

Section 66 Tribunal may make recommendation that costs be available in certain circumstances
66 (1) Where:
(a)a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b)the person is successful, or substantially successful, in his or her application for review;

the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2) Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d)the reasonableness of the decision reviewed by the Tribunal.

(3) The Attorney-General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.

The objects provision of the FOI Act reads as follows:

Section 3 Object
3 (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.

Submission of the Parties in Relation to the Decision to Refuse Access

The applicant put the following submissions:
(i) That the power to refuse to process a request under section 24 cannot now be made because a decision to impose charges has been made and notified to the applicant. If there were a power to do so after the charge had been levied this would make regulation 14 (under which the charges were imposed) constitutionally invalid because it would amount to a compulsory acquisition of property. This submission concerned the hypothetical situation where an applicant might have made a deposit payment and thereafter a decision was made under section 24 refusing to process the request. Regulation 14 would be construed so as to prohibit the repayment of the deposit. In this case, however, no deposit has been made.
(ii) That the power conferred under section 24 is not available to the respondent if such a decision would significantly impair the opportunity of the Australian community to make political judgments.
(iii) That the power under section 24 is exhausted in this case because the respondent agency had, at an earlier stage, already considered whether to exercise the power and had at that time made a decision not to do so. This would, at least, create an estoppel barring the present consideration.
(iv) That the obligation imposed on the respondent under subsection 24(6)(e) had not been met.
There are no jurisdictional impediments to the operation of section 24 in this case. As the respondent points out, in this case, no processing of the application has occurred. The applicant has paid no money and processing of the request did not and would not commence until such a deposit was paid. However the respondent also submits that, even if processing had commenced, this would not prevent the operation of section 24 and that the words of the section "without having caused the processing of the request to have been undertaken" should be read as meaning "without having caused the processing of the request to have been undertaken to completion", arguing that unless there was scope for an agency which has embarked on a task of processing a request to rely in appropriate circumstances on section 24, the section would be unreasonably restricted in its scope and purpose.
To support this submission the respondent relies on decisions such as such as Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1993) 33 ALD 171; Re Finlayson and Family Court of Australia (unreported AAT decision, AAT 13302, 21 September 1998) and Re Radicic and Australian Postal Corporation (unreported AAT decision, AAT 13188, 27 July 1998) which were all made in circumstances where the request had been part processed but not finalised and this had not precluded a decision under section 24.
I agree with this submission. Section 24 has work to do in the context of the FOI Act. It has been included in the legislation to protect, in appropriate circumstances, the operation of executive government in a practical way. To restrict its operation would defeat its purpose. However, I agree with the applicant's submission that, when invoked, the section must be strictly complied with because it does in an operational sense restrict freedom of communication which is clearly the principal object of the FOI Act.
Has the respondent complied with its obligations under subsection 24(6)(e)?
During the periods set down by the timetable directed by the Tribunal there was an extensive process of consultation between the applicant and the respondent entered into as a means of fulfilling the respondent's obligations under subsection 24(6)(e). In order to assess whether this process of consultation was adequate and the requirements of practicability had been considered properly it is necessary to set out the history of these processes.
History of consultation between the parties in relation to the section 24 decision
By letter dated 7 July 1999 the FOI Coordinator, Ms Szoldra, said
"In the Department's view, there are several means by which your client's request could be narrowed such that the ground for the section 24(1) refusal could be removed. These means include:
a)the identification of, and request for, material concerning a much smaller, but still representative, sample of overseas trips – to facilitate such a narrower selection, the Department would be willing to provide a full list of all files, folders and study trip references for all Prime Ministerial, Ministerial and study trips within the nominated 1994-1997 period; and
b)the elimination of major classes of material from the scope of the request as currently phrased – the most significant such class of material would be documents which include third party telephone numbers and credit card numbers, but other such classes could include standard advice letters, reminder letters, calculation sheets, the working papers of the Overseas Travel Services Section, interdepartmental standard forms, faxes and cables."

On 16 July 1999 the applicant reduced its request in the following way:
"We are further instructed that our client does not seek access to documents containing only telephone numbers or credit card numbers and consents to the deletion of all telephone numbers and credit card numbers from documents the subject of this request.
For the purposes of any consultation on s 24 preceding disposal of the current matter before the Tribunal our client will make no further concession."
In letters dated 13 August and 16 August 1999 the applicant canvassed a number of issues as follows:
"Our client wishes to take the opportunity to engage in meaningful consultation concerning the content of the documents which fall within the scope of its request in order that it may be able to further reduce the scope of the request. To date, the description of documents provided by the Department has been insufficient to enable our client to further reduce its request other than by reference to credit card numbers and telephone numbers.
As the Department will not permit our client to view the documents, it is extremely important that our client be given a meaningful description of the categories of documents which fall within the scope of its request.
As you are aware, Keith Moor, Insight Editor of the Herald Sun will be attending Canberra for a full day this Wednesday 18 August 1999 for the purposes of engaging in meaningful consultation.
We would be pleased if you would provide ourselves or our client with some form of outline or schedule of the categories of documents within its possession before that date in order that our client may have the opportunity to consider the matter further prior to this Wednesday's meeting."
On 17 August 1999 the respondent provided to the applicant a schedule of categories of documents within the terms of the request. That list of categories became exhibit 20 in the proceedings.
On the 18 August 1999 the respondent wrote to the applicant in the following terms:
"1. I refer to the teleconference yesterday and as instructed, now provide replies to the questions raised by you and your client. I note that these replies were forwarded to Mr Moor of your client early this morning.
1. Answer to query regarding 'Item 1 documents': We note your comments and have added item 1 documents to the list of documents you envisage requiring.
2. Items 4 & 5: We are unable to immediately agree to deal with these documents outside the FOI Act as to deal with the issues fully would require consultation with other Departments.
3. DOFA cannot assist the applicant further to narrow its request with regard to 'Item 14'.
4. DOFA will not accommodate 'staged access'.
2. I look forward to receiving your clients final proposal to reduce the scope of the request."

On 25 August the applicant wrote to the respondent in the following terms:
"…
3.On the basis of those consultations and using the indexing system to documents set out in the document entitled "Summary of Meeting" we advise that our client does not require the documents falling within the category numbers below.
2, 8, 9, 16 ,17 ,18, 22, 23, 29, 31, 32, 33, 34, 35 and 36.
4.With respect to item 1, Mr Moor understood the oral consultation to be to the effect that thee would not be much useful detail in the Minister's letter to the Prime Minister seeking approval for overseas travel. I have advised him that from my personal recollection of these matters, that is not likely to be the case. I have advised him that those letters are likely to be the documents which set out in some detail the scope and purpose of the Ministers' overseas visits including details on all significant meetings proposed by the Ministers. If the former position is correct our client does not require the items listed as No 1. However if those documents contain information about the scope and purpose of a Minister's overseas visit or of significant persons or institutions to be visited, our client does require those letters.
5.In respect of items 4 and 5, please confirm that the rate of allowance paid to Ministers and staff does not vary by country or city visited. If that is so, our client would seek merely one copy of each standard letter which need contain no identifying information. It is a matter for your client whether that is done in or outside the provisions of the Freedom of Information Act.
6.With respect to documents within category 14, we seek further information on the categories of third parties likely to be named in the documents. Our client expects that the names of most persons visited by Ministers will not be of interest but there will be some who, by reason of their position or organisation, or other profile, will be of interest. For example, our client would not require the names of middle ranking public servants with whom a Minister met from a portfolio of a Foreign Government which was related to the Minister's portfolio but would require the names of the Head of State or Minister of that Government with whom the Minister might have met or, for example, a famous movie star.
7.In respect of items within category 15, the comments in respect of items 4 and 5 above apply.
8.With respect to category 26, please advise with respect to the reference in the respondent's notes of the meeting to "he accepted that deleting the numbers would take quite some time":
(a)that time which is currently included in the calculation of charges in this matter; and
(b)how much time?
9.With respect to category 24, your email of 24 August states that "this refers to a cover sheet sent to DOFA from DEFAT [sic] posts, which explains and/or translates accompanying invoices/accounts (such are often in a foreign language)". Please describe the relationship between these documents and those included within categories 10 and 11.
10.With respect to category 37 we reiterate Mr Moor's request for further information on what is contained in the description "miscellaneous items".
11.We look forward to the respondent's advice on each of the issues raised above at our conference on Thursday 26 August. …"

On 31 August 1999 the applicant wrote again about the narrowing of the request and in particular requested a range of further information which it needed in order to consider narrowing the request further:
"(a)We submit that the applicant is left in a position where it has been unable to narrow its request in respect of those categories of documents that remain subject to the request because in respect of each such category the information provided to the applicant leads to the conclusion "there may well be something of interest to us within that category of document". In respect of no such category has sufficient information been provided to enable the applicant to conclude that all such documents or even the majority of such documents will be of interest.
(b)The Department has maintained that the processing of the request must be done by staff within the Ministerial and Parliamentary Services Group. You have chosen to provide no information in response to our question as to why.
(c)The Department has been aware of the need to process this request, or one like it, since the first request was lodged by the applicant on 15 April 1997.
The Applicant has no information upon which to form a judgment as to the efforts by the respondent to provide resources to process the request since that date.
(d)With respect to categories 4, 5 and 15, of documents, your record of 26 August 1999 conclusively demonstrates that the requirements in s 24(6) have not been met.
(e)With respect to category 26 documents (being telephone numbers) we confirm your advice at conference that some 3 to 5 minutes per folio has been included in calculations to take account of the time needed to delete telephone numbers.
We reiterate our position that consultation is not required in respect of telephone numbers where the document concerned contains no further identifying information.
We do not understand how a factor of "3 to 5" minutes can be applied to a very large number of folios. We do not understand what the number of folios to which that factor has been applied is. We note that if it has been applied to 60,000 folios at an average of 4 minutes per folio, 4,000 hours of your currently assessed decision-making time is in dispute on this matter alone.
In short, this is a most significant matter upon which no clear information at all has been provided to the applicant.
Apparently without responding to the concerns raised in this letter, the respondent made its first decision to refuse access on 14 September 1999.
In relation to the consultative process this decision-maker concluded that the applicant had been provided with as much information was possible and sufficient to enable the applicant to make a request in such a form that the work involved in processing the request would not substantially and unreasonably divert the resources of the Department from its other operations.
During the reconsideration of this decision, the decision-maker dealt, in some detail, with the applicant's complaint that there had not been sufficient consultation to allow narrowing of the request. None of these issues were canvassed with the applicant before this reconsideration was made. The applicant was only able to discover the reason for proceeding to make a decision under section 24 and ceasing to consult by reading the decision to refuse access itself. In a letter dated 15 September the applicant had raised a number of matters:
"(c)The primary decision is based upon a conclusion that "the nature of the information, the nature of the persons to be consulted and the position held by the persons whose information is mostly involved requires that the request be handled by reasonably senior officers who have the necessary skills to recognise information which might damage the legitimate interests of the Australian Government in its dealing with other governments or international organisations". Such a concern has not been raised with the applicant previously. The applicant was not afforded an opportunity to narrow its request to avoid this outcome. Indeed on the question of narrowing with respect to third party foreign nationals the respondent refused to provide any information about the contents of the documents by which our client might narrow its request."

The applicant says that it was and is still unaware of the relationship between the global numbers of documents held by the respondent as against the categories of documents the applicant was informed about (A20), and is also unaware of the relationship between any of the categories and the assessment of workload which was made by the decision-maker. The sampling which, the applicant says, would have been required to work out how many documents are now included in the narrowed request has not occurred and the respondent has failed to provide information to the applicant as to whether the use of categories of documents as listed in document A20 was an appropriate way to proceed. In particular it was not informed as to whether those were the categories of documents affected, the number of documents involved and how to make the task of narrowing the request easier.
The applicant says that the respondent has an obligation under subsection 24(6)(e) to provide this information in a way that would have assisted the applicant in making a request in a way which might have avoided the refusal under section 24. This is, it submits, particularly relevant in relation to consultations with third parties, arguing that this process consumes more than half the time that has been assessed by the respondent, and this is time which might well have been able to have been saved had the respondent had information about the categories of people who needed to be consulted.

The applicant further relied on the fact that section 24 had been amended to make its application more rigorous arguing that the effect of the amended section is such that unless that information is provided the decision-maker is prohibited from making a decision under section 24(1) refusing access.
The respondent not surprisingly relies on the words in subsection 24(6)(e) "as far as reasonably practicable" to defend itself from these criticisms and states that it was not practicable (and therefore not required) that the agency engage in processing any documents at this stage with a view to assisting the applicant refine its request.
The respondent relied on its conclusion that the applicant's decision to reduce the number of categories of documents sought in its request had not led to a substantial reduction in the number of relevant documents or the time required to process them (T3). The respondent had recalculated the task, taking into account the reduction in the categories (T19), and said that these reductions in the categories did not lead to a reduction in the time involved in processing the documents and hence the cost of such processing. The respondent had concluded that it would have been necessary to rate all documents in order to differentiate the documents where consultation was still necessary and those documents where consultation might not be necessary – an exercise which would not, in its view, be practicable. The respondent had therefore come to the view that further refinement in this area would not lead to a reduction in time or cost and therefore would not affect the conclusion already made to refuse the request under section 24.
The respondent has in my view failed, at least in one respect, in relation to its obligation under subsection 24(6)(e). While I agree it would not be reasonably practicable for the respondent either to permit a journalist employed by the applicant to examine a sample of the documents which fall within the terms of the request or to review all of the documents to advise the applicant as to the numbers of people in different categories mentioned in the documents, it was obliged, at least, to answer the queries of the applicant, in particular in relation to categories 4, 5 and 15 (identified in A20). It may be that, in the end, providing such information would not be reasonable. However, subsection 24(6)(e) obliges the agency to complete the process of consultation before coming to that view. Perhaps the limited time frame for the consideration under section 24 which, if one refers to the history of the matter outlined above, was conducted during the course of a hearing in relation to another matter before the Administrative Appeals Tribunal may have led the respondent agency to truncate the consultation process. Unfortunately if this deprives the applicant of an opportunity to exercise its right to refine the request then it fails to comply with a pre-condition for refusal to process under section 24 of the FOI Act.
The consequences of a decision under section 24 to refuse to process a request are of major significance to any applicant and prevent the operation of the principles embodied in section 3 of the FOI Act, set out above. Section 3, while not creating a constitutional impediment, requires section 24 to be read very strictly.
Exercise of discretion under section 29
As I have concluded that the powers under section 24 are not exhausted either by a previous decision not to exercise them or the commencement of the process of assessment of the claim, it may be that if the parties continue to discuss ways in which the claim can be narrowed, that section 24 could still to be considered by the respondent. It may therefore be helpful to the future progress of this matter to express a view on the exercise of discretion under section 24 in this matter while considering the application made under section 29.
The applicant not surprisingly argued that the discretion to refuse the request under section 24 and the discretion to refuse to impose or reduce charges under subsection 29(4), together with a discretion to make a recommendation under section 66, are to be exercised in accordance with the principles enumerated in subsection 3(2) of the FOI Act, together with a consideration and assessment by the decision-maker of the public interest.
The applicant submits that a proper interpretation of section 3(2) would result in those discretions being exercised in the applicant's favour, primarily because to do so would make available to the Australian public for their benefit important information about the operations of the Department of Finance and Administration. There is no reliable evidence available to the Tribunal to counterbalance this benefit in order to come to a conclusion that the discretion available cannot possibly be exercised in the applicant's favour.
In relation to this public interest the applicant firstly argued that members of Parliament have no private affairs in relation to the discharge of their parliamentary functions. The applicant relied for this proposition on a passage from the judgment of Isaacs J in Horne v Barber (1920) 27 CLR 494 at 500:
When a man becomes a member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duties. One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament – censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government, which is the keystone of our political system, and is the main constitutional safeguard the community possesses. The effective discharge of that duty is necessarily left to the member's conscience and the judgment of his electors, but the law will not sanction or support the creation of any position of a member of Parliament where his own personal interest may lead him to act prejudicially to the public interest by weakening (to say the least of it) his sense of obligation of due watchfulness, criticism, and censure of the Administration.

Information in the documents which are subject to this request includes information about private consumption expenditure by members of Parliament paid for by public monies. As the applicant points out, the respondent's witnesses referred to such payments as "entitlements". The public could only resolve any potential conflict of public duty and private interest in such circumstances by having a full and complete disclosure of the circumstances in which the expenditure was made.
The applicant also argued that the media has a special role to play in matters of electoral concern, relying upon general statements like that made by Lord Simon of Glaisdale in Attorney-General v Times Newspapers [1974] AC 273 at 320:
The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.

In this case the disclosure of the material sought will undoubtedly enable electors to make appropriate political judgments when called upon to do so. It will inform the public about the administration of an area of executive government which is very sensitive, namely, the use of public funds for overseas travel. The applicant argues it is particularly important to have disclosure about these matters where there have been major problems and inadequacies in the administration of domestic travel allowances, and these problems with domestic travel were brought to public attention through public concern and not because of the actions of the executive government. When these matters were disclosed the applicant rightly points out there was substantial political media and public interest in the information. However, the applicant submits there is currently no adequate reporting in relation to overseas travel and there is even less reporting in relation to the overseas travel material sought by this request. The applicant relied on the absence of external audits of overseas travel for the past 10 years and said that the Tribunal could conclude that the public would have reason to doubt the administrative integrity of the Department's systems dealing with overseas travel. All of this points to allowing disclosure to the applicant with the substantial fees waived.
The applicant also argued that this public interest discretion must be implemented in a way that facilitates now settled constitutional purposes. The particular constitutional purpose relied upon was that stated in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. It was held that there was implied in the constitution a freedom to communicate in order to preserve a system of representative, democratic government prescribed by the Constitution. Brennan J listed the ways in which this implied freedom had been formulated in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 326 (footnotes omitted):
The freedom has been differently formulated
·"freedom of communication, at least in relation to public affairs and political discussion" ;
·"freedom of discussion of political and economic matters";
·"freedom of political discourse";
·"freedom of participation, association and communication in respect of the election of the representatives of the people";
·"freedom to discuss governments and governmental institutions and political matters";
·"freedom of communication of information and opinions about matters relating to the government of the Commonwealth".
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court held that the Commonwealth Constitution protects the freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. This is a freedom not confined to election periods. The public have an interest in receiving such material and the government has a duty to provide it. It is this "duty" of executive government which is, the applicant argues, imposed on the decision makers in this case (including the Administrative Appeals Tribunal) which would prevent the operation of section 24 to prevent disclosure. The effect of this submission is that in circumstances where the material sought would be relevant to the exercise of choice as electors, section 24 is not available to allow the request to be refused however onerous the implementation of the request might be.
Even if this were accepted in a case such as this it would be unlikely in my view that applicants could demonstrate, without access to the material, that it would in fact have the alleged effect. The duty of the executive as it has been formulated in Lange must be read in the context of the structure and purposes of the FOI Act which was not under consideration in that case. The principle is not expressed as an absolute right to access and must be considered, in my view, in the context in which it arises. It is a consideration which may affect, together with the objects clause, the exercise of the discretion to invoke section 24. It does not prevent section 24 from operating according to its terms by providing a constitutional bar to its exercise. It is a matter to be considered in relation to the discretion available in section 24.
The applicant argues that the effect of this principle however formulated is to limit executive power so as not to prevent access such as is sought here, except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which would substantially impair the capacity of or reduce the opportunity for the Australian public to form political judgments, which they must do when performing their constitutional functions, that is, in voting.
While acknowledging that there is a discretion available to be exercised under the Act, the applicant argues that these constitutional principles require the Tribunal to make the relevant judgment in a way that will facilitate rather than defeat the purposes of the Constitution.
Because of the existence of this principle the applicant also made a submission that, in the circumstances of this case, an elector would in the ordinary course be entitled to attend the relevant Commonwealth offices and obtain access to the relevant files, by a process described as "self-help". The applicant contends that lawful executive power would not exist to prevent such self-help and hypothesised that this hypothetical elector would be entitled, if prevented from proceeding, to have this access, to a declaration of right by the Federal Court in relation to the matter. The applicant rightly concedes that the determination of this question is not a matter for the current application but does argue that in exercising the relevant discretion, a decision-maker ought to bear in mind the need to administer the FOI Act in order to avoid any potential "physical confrontations" or Federal Court proceedings by electors seeking to enforce their liberties against the abuse of executive power.
The respondent contends, however, that as the question of the public interest must be assessed on a document by document basis (as distinct from a generic or global public interest) the applicant does not know and therefore cannot say whether giving access to any documents would be in the public interest by the furtherance of this constitutional purpose. The applicant concedes that whether there will be any publication of the information sought will depend on what the documents contain. The test of publication will be whether the material is or is not "newsworthy" not whether it is in the public interest. Although the applicant appears to be asserting that it has a role as an editor of such material in the public interest, no doubt based upon its role as a publisher, it is conceivable that none of the information contained in the 75,000 documents sought, which are now at least three years old, or very little of that information, would be published by the applicant. Mr Macleod, the applicant's witness, said that if it obtained access the applicant would assess what was newsworthy and place only so much of it as meets this criteria on the Herald and Weekly Times internet site. This seems to suggest that the applicant is primarily involved in the commercial enterprise of publishing a newspaper and seeks these documents primarily for the purpose of its business.
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. In my view there is a significant public interest in knowing the way in which public funds are being used by those holding public office and this seems to be acknowledged by the respondent in that since the period in which the documents are sought in this application there has been a system of such disclosure set up by the government and complied with. However, as stated before the documents sought relate to travel undertaken some years ago and there is no guarantee of publication if released.
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 the applicant which runs a profitable business has, in my view, the financial resources to pay the charges imposed. No financial hardship has been demonstrated by the applicant. The fact that the cost has not been budgeted for is, at its highest, a commercial decision, not a matter of lack of funds. I conclude that the applicant would also receive a commercial benefit in disclosure, and when assessing the newsworthiness of the material such commercial benefit would be relevant. The application as it now stands will require a substantial number of resources to process it. If such resources were to be used and no part of the cost involved could be recouped from the applicant then this would, in my view, be inconsistent with the provisions of the Act. There does not seem to be, in my view, sufficient weight in the other arguments, particularly where there is no guarantee of publication, to outweigh this consideration.
The decision to refuse to waive or reduce a charge imposed on the applicant is affirmed and the decision to refuse to grant access to the documents sought pursuant to section 24 of the FOI Act is set aside.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Justice O'Connor, President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  11, 12 August 1999, 25, 26 October 1999, 15 December 1999
Date of Decision  22 June 2000
Counsel for the Applicant        T Brennan
Solicitor for the Applicant         Corrs Chambers Westgarth
Counsel for the Respondent    R R S Tracey QC
Solicitor for the Respondent    Australian Government Solicitor