MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information)
[2015] AATA 584
•11 August 2015
MacTiernan and Secretary, Department of Infrastructure and Regional Development (Freedom of Information) [2015] AATA 584 (11 August 2015)
Division
GENERAL DIVISION
File Number(s)
2015/0388
Re
Alannah MacTiernan
APPLICANT
And
SECRETARY, DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 11 August 2015 Place Perth The Tribunal sets aside the decision under review and substitutes that decision with the decision that the charge applicable to the Applicant's FOI request, dated 25 July 2014 (of $2,491.36), be waived by the Respondent pursuant to s 29(4) of the Freedom of Information Act 1982.
......(Sgd) CR Walsh..................................................................
Senior Member CR Walsh
CATCHWORDS
FREEDOM OF INFORMATION – whether discretion to reduce or not impose (waive) the applicable charge to process the Applicant’s FOI Request should be exercised – no “financial hardship” to the Applicant – whether the giving of access to documents in question in the “general public interest” or “in the interest of a substantial section of the public” – “objects” of FOI Act considered – decision under review set aside and substituted
LEGISLATION
Freedom of Information Act 1982 – s 3 – s 26A – s 29 – s 29(4) – s 29(5) – s 93A(3) – s 94A(3)
CASES
Francis and Department of Defence [2012] AATA 838
Re Drake and Minister for Immigration an Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Freedom of Information Guidelines, Version 1.5, October 2104 – paragraph 3.12 – Part 4
REASONS FOR DECISION
Senior Member CR Walsh
11 August 2015
INTRODUCTION
The Applicant, Ms Alannah MacTiernan MP (Federal Member for Perth), seeks a review of a decision of the Department of Infrastructure and Regional Development (Department) not to exercise the discretion in s 29(4) of the Freedom of Information Act 1982 (FOI Act) to reduce or not impose (waive) the charge (of $2,491.36) applicable to processing her FOI request, dated 25 July 2014.
On 25 July 2014, the Applicant wrote to the Department stating:
Pursuant to the Freedom of Information Act 1982, I apply for the release of documents relating to submissions from and correspondence with WA Ministers and WA Government departments and agencies concerning Roe Highway State 8 and the Perth Freight Link.
The documents requested include any record or part record of emails, diary notes, correspondence, file notes, transcripts, reports, computer printouts or any reproduction or photocopy of any of these ...from 1 September 2013.
(FOI Request)
Within the FOI Request, the Applicant applied for a waiver or reduction in the applicable charges as follows:
…….Please also refer to Attachment 1, where I request waiver of fees pursuant to s 29(5)(b) of the Act.
Attachment 1 to the FOI Request states:
Attachment 1
Request for waiver of charges
Given the strong public interest in the release of these documents, l ask that the charges pertaining to this request be waived in their entirety or, alternatively, be reduced by at least 75%.
This is an issue of broad public interest, as it relates to the expenditure of billions of dollars of taxpayers’ funds on a highly controversial road project, the Perth Freight Link, that affects both local residents and which has implications for nationally significant freight infrastructure in Western Australia.
The issue has received prominent national debate, through significant print and electronic media coverage, as well as debate In the Parliament.
For your information, I have attached a number of media articles from the last six months, which clearly demonstrate significant public interest in this issue.
Finally, this issue affects tens of thousands of Australians, relating as it does to potentially dramatic changes to road freight transport through medium density residential areas in the southern suburbs of Perth, as well as concerning appropriate planning for Western Australia’s future freight infrastructure needs. Releasing the requested documents would help them better understand and evaluate the policy context of the Perth Freight Link, and lead to a more broadly informed public.
I now detail how the release of the documents would inform the public debate, by helping the public to better understand and evaluate the policy context of the funding reallocation and reduction decision.
I contend that there are a number of grounds on which the release of the documents would inform the public debate:
1)The documents would contribute to and inform, the public debate on this issue by outlining the decision making process undertaken by the Minister and the Department of Regional Development and Infrastructure, particularly given the economics of the project (such as the high cost of construction) and the environmental significance of the area where development is proposed for the Roe Highway Extension.
2)The documents relate to the Department’s stakeholder engagement process. There is a substantial public interest in knowing how government makes decisions, and which organisations or individuals are exercising influence over making these decisions.
3)The document contains substantial amounts of information about the public debate that is not already on the public record. The Minister and Assistant Minister have both been on the record with information pertaining to the costs and benefits of the Perth Freight Link Project, although there is no transparency on how these costs and benefits were calculated, who did the analysis, and what other conclusions were drawn. The West Australian Government has also said that it does not have the full details of the project from the Commonwealth.
4)A range of public national organisations such as the Royal Automobile Club of Western Australia and its corollary groups nationwide also have an interest in the release of these documents, Release of the document would inform them of the Perth Freight Link, allowing them to more better represent their members, and assist them in advocating to government on behalf of their members, including preparing policy papers and submissions to Parliamentary government inquiries on this matter.
Furthermore, as a Member of Parliament, I intend to continue to raise this matter in Parliament* and make use of this document in Parliamentary debate. The release of these documents therefore, would contribute to a more informed Parliamentary debate, allowing Members and Senators to provide better representation to their constituencies.
All of the above paragraphs are directly relevant to section 2(a) of the Freedom of Information Act, which provides that one object is to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making
Furthermore, the volume of documents 1 have requested is appropriate and reasonable for the purposes of informing the public debate.
I therefore ask that charges be waived in its entirety or, alternatively, that it be reduced substantially.
On 13 August 2014, the Applicant revised the scope of the FOI Request to exclude “spreadsheets containing raw data”.
The Department identified 88 documents (comprising 498 pages) as within the scope of the FOI Request.
On 15 August 2014, the Department (Executive Director, Infrastructure Investment0 decided to impose a charge of $2,491.36 to process the FOI Request and not to waive or reduce the charge (Original Decision).[1]
[1] The Applicant did not challenge the Department’s calculation of the applicable charge of $2,491.36.
On 23 September 2014, the Applicant sought review of the Original Decision.
On 5 January 2015, the Department (Privacy Commissioner) affirmed the Original Decision (FOI Charge Decision). In so doing, the Privacy Commissioner stated:
18.The scope of the request is very wide; it includes all documents 'relating to' submissions and correspondence from the WA government and WA agencies 'concerning' the Roe Highway project. While Ms MacTiernan has reduced the scope of the request to exclude spreadsheets containing raw data, a substantial quantity and variety of documents remain within scope, including other computer records, correspondence, emails, diary notes and reports.
19.I have not examined a sample of these documents. However, given their volume and wide ranging character, I agree with the Department that giving access to all the documents would not be reasonably necessary to inform public debate on the Perth Freight Link project or for the analysis of other issues that may relate to this project [footnote omitted].
………
21.While I have considered that Ms MacTiernan has made the request in order to support a public debate on a matter of interest in her electorate, I believe that giving access to the range and volume of documents requested could not reasonably be expected to inform the debate. I agree with the Department that the documents are primarily of interest to Ms MacTiernan.
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23.Ms MacTiernan contends that the central component of the Perth Freight Link, the building of Roe Highway Stage 8, is a matter of great contention in electorate of Perth. While I accept that the Perth community who have an interest in the building of Roe Highway State 8 would likely constitute a 'substantial section of the public' the purposes of s 29(5}(b), I do not agree that giving access to the range and volume of documents requested could be considered reasonably necessary to inform the debate.
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Exercising the discretion
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27.Deciding whether the giving of access to documents is in the general public interest or in the interest of a substantial section of the public will ordinarily require consideration both of the content of the documents and the context of their release [footnote omitted].
28.I believe that giving access to information surrounding the government's decision to invest $1 Billion in the Perth Freight Link would contribute to the public understanding of an important issue. However, in this IC review, I am satisfied that the applicant has sought more documents than is reasonably necessary for that purpose. In such circumstances I may consider a partial reduction of the charge* or decline to reduce or waive the charge [footnote omitted].
29.Given the large volume and wide range of documents sought by Ms MacTiernan, which I am satisfied is more than is reasonably necessary to inform debate on the Perth Freight Link issue, I have decided not to exercise my discretion to waive or reduce the charge.
On 28 January 2015, the Applicant applied to the Tribunal for a review of the FOI Charge Decision.[2]
[2] In support of her application, the Applicant filed two witness statements, dated 5 June 2015 and 5 August 2015 respectively, and a witness statement of Katharine Kelly, signed but undated. Ms Kelly is a local activist with knowledge and interest in the Roe 8 Extension and the Perth Freight Link.
ANALYSIS
The legislative framework for determining whether “to reduce or not to impose” charges applicable to processing a FOI request is set out in s 29 of the FOI Act (Charges).
The discretion to reduce or not impose a charge applicable to processing a FOI request is set out in s 29(4) of the FOI Act, which provides:
(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.
However, when making a decision whether to reduce or not impose a charge to process a FOI request, s 29(5) of the FOI Act provides that the Department must consider: (i) any financial hardship to the applicant; and (ii) whether the giving of access to the relevant document is in the “general public interest” or in the “interest of a substantial section of the public”. Section s 29(5) of the FOI Act provides:
(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.
The Applicant does not contend any “financial hardship” associated with the payment of charges for the FOI Request. Consequently, the relevant consideration for the Tribunal is limited to whether giving access to the documents requested is in the “general public interest” or in the “interest of a substantial section of the public” and whether the discretion to reduce or waive the charge imposed for the FOI Request (i.e. $2,491.36) should be exercised.
The phrases "in the general public interest” and “in the interest of a substantial section of the public" are not defined within the FOI Act.
Under s 93A(3) of the FOI Act, decision makers must have regard to the Freedom of Information Guidelines (FOI Guidelines) when making decisions under the FOI Act.[3] The FOI Guidelines are not a legislative instrument and, in contrast to the provisions of the FOI Act, are not binding: s 94A(3) of the FOI Act. Nevertheless, the Department will apply the FOI Guidelines in discharging its reviewing and monitoring functions under the FOI Act. Further, paragraph 3.12 of the FOI Guidelines state:
The AAT also expects decision makers, including members of the AAT reviewing FOI matters, to apply the Guidelines unless there is a cogent reason to do otherwise [Francis and Department of Defence [2012] AATA 838 [18]].[4]
[3] FOI Guidelines, Version 1.5, October 2014.
[4] See also Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
Part 4 of the FOI Guidelines (Charges for Providing Access) provides guidance on the application of s 29 of the FOI Act (Charges).
At paragraph 4.48, the FOI Guidelines state:
Correction, reduction or waiver of charges
………
4.48 In addition to considering those two matters [i.e. the two matters stipulated in s 29(5) of the Act], an agency or minister may an agency or minister is also entitled to consider any other relevant matter, and in particular should give genuine consideration to any contention or submission made by the applicant as to why the charge should be reduced or waived. An agency or minister cannot fetter the discretion conferred by s 29(4) of the Act by adopting a rule that confines the matters that will be considered or the circumstances in which a charge will be reduced or waived. Moreover, an agency or minister should always consider whether disclosure of a document would advance the objects of the Act, even though an applicant has not expressly framed a submission on that basis. The objects of the Act include promoting better informed decision making, and increasing scrutiny, discussion, comment and review of the Government’s activities (s 3). [Emphasis added]
Section 3 of the FOI Act (Objects – general) states:
Objects—general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Although the Tribunal must consider the public interest matters specified in s 29(5) of the FOI Act, the decision whether to waive or reduce charges applicable to FOI requests is ultimately a matter of discretion. In this regard, the FOI Guidelines provide (at paragraph 4.50):
It is open to an agency or minister to impose a charge even though it would cause financial hardship to the applicant, or a public interest purpose for disclosure has been established [footnote omitted]. However, there is no onus on the agency or minister to reach a decision on the merits of the request.
Under the heading “Public interest”, the FOI Guidelines state:
Public interest
4.54 The Act requires an agency or minister to consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public’ (s 29(5)(b)) [footnote excluded]. This test is different to and to be distinguished from public interest considerations that may arise under other provisions of the FOI Act. Specifically, the public interest test for waiver in s 29(5)(b) is different to the public interest test in s 11A(5) that applies to conditionally exempt documents. Nor will s 29(5)(b) be satisfied by a contention that it is in the public interest for an individual with a special interest in a document to be granted access to it, or that an underlying premise of the FOI Act is that transparency is in the public interest.
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4.56 There is no presumption that the public interest test is satisfied by reason only that the applicant is a member of parliament, a journalist or a community or non-profit organisation. It is necessary to go beyond the status of the applicant and look at other circumstances……
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4.58 The ‘public interest’ is a concept of wide import that cannot be exhaustively defined [footnote omitted]. The following examples nevertheless illustrate circumstances in which it may be thought appropriate by an agency or minister to reduce or waive a charge under s 29(5)(b) for granting access to a document under the Act:
·The document relates to a matter of public debate, or a policy issue under discussion within an agency, and disclosure of the document would assist public comment on or participation in the debate or discussion [footnote omitted].
·The document relates to an agency decision that has been a topic of public interest or discussion, and disclosure of the document would better inform the public as to why or how the decision was made, including highlighting any problems or flaws that occurred in the decision-making process [footnote omitted].
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·The document is to be used by a member of Parliament in parliamentary or public debate on an issue of public interest or general interest in the member’s electorate [footnote omitted].
4.59 In applying those and related examples, an agency or minister may also consider whether the range or volume of documents requested by an applicant could be considered reasonably necessary for the purpose of contributing to public discussion or analysis of an issue. If an FOI applicant has sought more documents than is considered reasonably necessary for the stated purpose, the agency or minister may consider a partial reduction of the charge, or decline to reduce or waive the charge.
At paragraph 4.61, the FOI Guidelines state, under the heading “Other grounds for reduction or waiver”:
An agency or minister has a general discretion to reduce or not to impose a charge, and this discretion is not limited to financial hardship and public interest grounds.
In essence, the Department’s position is that in the FOI Request the Applicant has requested significantly more documents than would be necessary to inform public debate and that that giving access to all of the documents, within the scope of the FOI Request, is not, on balance, sufficiently in the “public interest” or “in the interest of a substantial section of the public”. For this reason, it is the Department’s contention that the charge applicable to the FOI Request should not be waived or reduced under s 29(4) of the FOI Act.
The Department submits that the sheer volume and nature of documents sought by the Applicant in the FOI Request goes beyond what is necessary to advance the public interest and would require significant Departmental resources to process. The Department argues that conducting this work, without charging a fee, would divert the Department from its core functions. The Department contends that it is not in the public interest to provide access to the documents falling within the scope of expansive FOI requests (like the Applicant’s) at the expense of the Department's capacity to carry out its other functions.
In support of its position, the Department refers to paragraph 4.59 of the FOI Guidelines (set out in paragraph 21 above) and paragraph 4.49 of the FOI Guidelines which provides that in circumstances where the applicant has requested access to a substantial volume of documents and significant work would be required to process the request, an agency may decide that it is appropriate to impose an FOI charge.
Further, according to the Department it would have been possible for the Applicant to frame the FOI Request in a more confined way and in a manner which more accurately targets documents which would advance the kind of public debate foreshadowed in the FOI Guidelines.
More specifically, the Department asserts that the Applicant could have confined the FOI Request to documents relating to the issues raised in the Applicants’ Statement of Facts, Issues and Contentions”, dated 8 June 2015 (at paragraph 42) and her Supplementary Witness Statement, dated 5 August 2015 (at paragraphs 7-9), namely: (i) the significant negative environmental impact of the Roe Highway project, (ii) the history and planning processes that underpinned the Roe Highway project; and (iii) the costs and benefits of the Roe Highway project.
On this basis, the Department contends that the Tribunal should not exercise the discretion in s 29(4) of the FOI Act to waive or reduce the charges applicable to the FOI Request.
In contrast, the Tribunal considers, on balance, that the discretion in s 29(4) of the FOI Act should be exercised and the charge applicable to the FOI Request waived.
As stated above, the Department identified only 88 documents (comprising 498 pages) as being within the scope of the FOI Request and determined that the charge applicable to process the FOI Request to be $2491.36: see paragraphs 7 and 8. It is not in dispute that the FOI Request involves obtaining access to documents relating to a proposed $1 billion (plus) government (taxpayer) funded infrastructure project in Western Australia. Indeed, in the FOI Charge Decision (at paragraph 28) the Department acknowledged that “access to information surrounding the government’s decision to invest $1 billion in the Perth Freight Link would contribute to public understanding of an important issue”: refer to paragraph 10 above. When one compares the number of documents identified as within the scope of the FOI request (i.e. 88 documents) and the cost of processing the FOI Request ($2,291.36) against what the FOI Request relates to (i.e. a proposed $1 billion (plus) government (taxpayer) funded infrastructure project) the Tribunal considers, on balance, that the giving of access to the documents in question is in the “general public interest” or, at the very least, “in the interest of a substantial section of the public” for the purposes of s 29(5) of the FOI Act and that the charge associated with processing the FOI Request ought be waived under s 29(4) of the FOI Act in the circumstances of this case.
The argument put by the Department that the FOI Request should have been narrowed to the issues raised in the Applicants’ Statement of Facts, Issues and Contentions”, dated 8 June 2015 (at paragraph 42) and her Supplementary Witness Statement, dated 5 August 2015 (at paragraphs 7-9), namely: (i) the significant negative environmental impact of the Roe Highway project, (ii) the history and planning processes that underpinned the Roe Highway project; and (iii) the costs and benefits of the Roe Highway project would, if accepted, would tend to place a narrow and impermissibly restrictive interpretation on s 29 of the FOI Act, disregard what is stated in paragraph 4.48 of the FOI Guidelines (which the Tribunal must have regard to) and be at odds with the objects of the FOI Act (in s 3): see paragraph 19 above.
DECISION
For the above reasons, the Tribunal sets aside the FOI Charge Decision and substitutes that decision with the decision that the charge (of $2,491.36) applicable to the FOI Request be waived.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
...(Sgd) A Tran......................................................
Administrative Assistant
Dated 11 August 2015
Date of hearing 5 August 2015 Counsel for the Applicant Mr S Millman Solicitors for the Applicant Mr D Scaife
Slater + Gordon LawyersRepresentative for the
RespondentMr C Sibley
Clayton Utz
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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