Jeffrey Knapp and Australian Accounting Standards Board
[2014] AATA 744
•15 October 2014
[2014] AATA 744
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1220
Re
Jeffrey Knapp
APPLICANT
And
Australian Accounting Standards Board
RESPONDENT
DECISION
Tribunal Mr D Letcher, QC, Senior Member
Date 15 October 2014 Place Sydney The decision under review is set aside. The applicant is to be permitted access to the document produced by the respondent.
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Mr D Letcher, QC, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – Access to electronic documents - Documents contained on CDs - Whether document is available for purchase by the public - Documents not available to the public - Documents only available upon inspection of CDs - Decision under review set aside - Applicant entitled to access documents
LEGISLATION
Freedom of Information Act 1982 (Cth), ss 4(1)(a)(v), 12(1)(c), 45(1)(a)
CASES
Brett v Monarch Investment Building Society (1894) 1 QB 367
Devitt v Mutual Life Insurance Co of Canada (1915) 33 OLR 473
Roberts v Dorman Long & Co [1953] 2 All ER 428
REASONS FOR DECISION
Mr D Letcher, QC, Senior Member
15 October 2014
INTRODUCTION
On 13 November 2012 the applicant, Mr Jeffrey Knapp, emailed the respondent, Australian Accounting Standards Board (“AASB”) as follows:
“This email is a request for access to documents and is made under the Freedom of Information Act 1982 (Cth). I request access to the complete sample of financial reports that ASIC has provided to the Australian Accounting Standards Board for its current research project relating to the characteristics and accounting policies of lodging entities.”
The respondent refused this request on 26 November 2012, which was confirmed by an internal review on 20 December 2012 and upheld following a further review by the Privacy Commissioner on 12 February 2014. The applicant seeks review of that decision.
Mr Knapp is an academic accountant with an interest in corporate accounting standards. He appeared unrepresented before the Tribunal as did Mr Angus Thomson, the Research Director of the respondent.
EVIDENCE BEFORE THE TRIBUNAL
Mr Thomson gave evidence that in 2011 the respondent (which is a Commonwealth government agency) had requested the Australian Securities and Investment Commission (“ASIC”) to provide a representative sample of the total population of annual financial reports lodged with ASIC for the financial years 2008, 2009 and 2010. The evidence was that some 10,000 reports such as these are filed each year.
The approximate number of companies for which the reports were obtained (classified by type of company) were:
·Large proprietary companies: 394
·Foreign-controlled companies: 340
·Small proprietary companies: 95
·Unlisted public companies: 347
·Public companies limited by guarantee: 365
An ASIC officer chose a sample of the filed annual reports and forwarded them to the respondent who in turn forwarded them to researchers contracted by it and the respondent to draft a report.
The respondent’s board reviewed the researchers’ draft report and requested that additional reports be supplied so that at least five years of reports were obtained for each large proprietary company, while those that had ceased to exist after one year were eliminated from the report. The researchers then altered the sample in ways not described in detail. Mr Thomson described the choice of sample as “an iterative process” i.e. conducted in several different stages He described the sample as being a “subset” of the lodgements chosen by the respondent’s contracted researchers after the board had reviewed the first draft report and requested changes to the data.
LEGISLATION
Section 4(1) of the Freedom of Information Act 1982 (Cth) (“the Act”) relevantly provides:
"Document" includes:
(a) any of, or any part of any of, the following things:
… (v) any article on which information has been stored or recorded, either mechanically or electronically
Initially the respondent claimed that the material comprised an “exempt document” under section 45 of the Act because disclosure would be a breach of confidence contrary to section 45(1) of the Act. That approach was abandoned by the Privacy Commissioner on review because section 45(1)(a) provides that:
[a] document is an exempt document if its disclosure under this Act would found an action, by a person [other than an agency, the Commonwealth or Norfolk Island], for a breach of confidence.
ASIC is an agency of the Commonwealth for the purposes of the Act. The Privacy Commissioner decided correctly that Section 45 does not apply to this case.
However, Section 12(1)(c) of the Act provides that :
(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 by an agency.
The annual financial reports lodged with ASIC are available for purchase on ASIC’s public register and online.
On that basis, the Privacy Commissioner determined that Section 12(1)(c) applied and that the applicant was not entitled to access to the material sought.
IDENTIFICATION OF THE DOCUMENT SOUGHT
The Tribunal requested that the respondent produce that which was sought by the applicant and AASB produced to the Tribunal a group of eight compact discs (CDs). The Tribunal (but not the applicant) inspected the contents and found that they included (relevantly):
·Disc 1 – included a statement entitled: “Scott Rea specified companies with 388xls” with a list of columns headed:
oOrganization No, Received, SubClass, SubFam, Code, Document No and Year;
·Disc 8 - lists of reports and a title “Unlisted other than LMGT samples” followed by “348 records” of companies with columns headed:
oCAN, Name, Type, Class, SubClass, Status and Document No.
Some of the companies listed had entries for 2007, 2010 and other years. The “complete sample” used for analysis by the respondent appears to include characteristics and extracted details as well as the actual filed annual reports themselves.
In evidence, Mr Thomson stated the following:
·Not every lodgement was included on the discs;
·The data on the discs was a ‘subset’ or sample chosen by AASB’s contracted researchers;
·Scott Rea was the ASIC officer who had provided the data;
·The data was separated into five different company types before analysis; and
·The choice of the data included on the discs occurred over a period of time. Initially there were 200 “large proprietary company” reports but the AASB board requested five years of returns for those companies and further returns were obtained. Some companies which had been deregistered were eliminated. Other companies’ returns were added.
The conclusion to be drawn from inspection of the discs and the evidence of Mr Thomson was that the eight CDs contained copies of financial reports separated into different classes of companies for one or up to five years lodged with ASIC of companies chosen by contracted researchers from a list provided by an ASIC officer. This means that the discs contain much more than a list of a sample of documents lodged.
Mr Knapp’s request for “the complete sample of financial reports that ASIC has provided to the Australian Accounting Standards Board for its current research project” could only be answered by access to the eight CDs. It would be impossible for Mr Knapp or any other member of the public to obtain the sample by purchase without knowing the names of all the companies and all the years of the returns used.
MEANING OF “AVAILABLE FOR PURCHASE BY THE PUBLIC”
Section 12 of the Act refers to documents that are “available for purchase by the public”. The subsection reads in full:
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 by an agency.
I do not regard the last phrase “in accordance with arrangements made by an agency” as making any significant difference to the beginning of the sentence.
The meaning of ‘available’ depends greatly on the context in which it appears. In Brett v Monarch Investment Building Society (1894) 1 QB 367 at 371-372 it was held that “available balance in hand” meant “money which without undue loss or delay they could realise” rather than intangible or capital assets.
In Roberts v Dorman Long & Co [1953] 2 All ER 428 the issue was whether seatbelts were available for men on a worksite if they were at a company office some distance away. It was held that they were ‘available’ only if a man could “get one and get it reasonably quickly”.
In the context of whether a lump sum benefit of a life insurance policy was available on the occurrence of an event, a Canadian court held that “available does not mean ‘existing’. It means in such a condition that it can be taken advantage of” (Devitt v Mutual Life Insurance Co of Canada (1915) 33 OLR 473).
“Available” is not defined in the Act. Taking into account the subject matter and objects of the legislation as well as decided cases, I believe “available” in the present case means “readily obtainable”, “identifiable by a member of the public” and “actually able to be acquired”.
In the case of ‘the complete sample of company financial reports that ASIC has provided to AASB for its current research project” the definition of the sample is completely unknown to members of the public. Mr Thomson’s evidence made it clear that the choice of the sample was made in a lengthy process involving choices by ASIC, the board of the respondent and its researchers. ASIC provided some reports that were not used and supplied other reports that were specified by the respondent to make up the time span the board required. It is not clear to me if the categorizations and separation into columns of the data as found on the CDs indicate different ways in which the individual company reports were used to make up the sample the researchers used.
The “complete sample” can be ascertained only by looking at the data contained on the eight CDs. That appears to be the only way in which the particular documents and parts of the documents which comprise that sample can be identified. This must mean that the particular reports which make up the sample used in the research are not able to be requested at all by a member of the public. They certainly cannot be obtained “without undue delay”, and they are not “in such a condition that the public could take advantage of” them (see cases cited above). In those circumstances, I believe that the reports are not in fact “available for purchase by the public” within the meaning of section 12(1)(c) of the Act.
CONCLUSION
The eight compact discs produced by the respondent constitute a ‘document’ under the Freedom of Information Act 1982 (Cth). That document is not available for purchase by the public. As to each of the annual financial reports which are a part of the document, a member of the public is unable to identify any specific report without access to compact discs one through eight. Unless those specific reports can be identified the public is unable to actually acquire them. This means that the specific reports are not “available” to the public.
DECISION
The decision under review is set aside. The applicant is to be permitted access to the document produced by the respondent.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member ........................................................................
Associate
Dated 15 October 2014
Date of hearing 8 September 2014 Applicant In person Respondent Mr A Thomson
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