NOVAK and AUSTRALIAN FEDERAL POLICE
[2010] AATA 295
•23 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 295
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0957
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD NOVAK Applicant
And
AUSTRALIAN FEDERAL POLICE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date23 April 2010
PlaceCanberra
Decision Mr Novak’s request that the Commonwealth pay his costs in these proceedings is rejected.
.
....................[sgd].......................
Mr S. Webb, Member
CATCHWORDS
FREEDOM OF INFORMATION – request for recommendation as to payment of costs – power limited to costs incurred in the course of proceedings – discretion preconditioned by success – meaning of ‘substantially successful’ – preconditioning criteria not established – request refused
Freedom of Information Act 1982 (Cth) ss 55, 66
Re Paterson and Department of Arts, Heritage & Environment (No 2) (1985) 8 ALD 227
Re Rae and Department of Arts, Heritage & Environment (1985) 7 ALD 449
Re Collins and Indigenous Business Australia [2008] AATA 505
Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43
Re WAJ and Ombudsman (Cth) (1999) 53 ALD 700
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union & Ors (1980) 27 ALR 367
Re Jacobs and Department of Defence (No 2) (1988) 16 ALD 176
Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
REASONS FOR DECISION
23 April 2010 Mr S. Webb, Member 1.
Richard Novak applied for review of decisions made by the Australian Federal Police (AFP) in relation to two requests for information under the Freedom of Information Act 1982 (Cth) (‘the Act’).[1] Mr Novak has made a request under
section 66 of the Act that the Commonwealth pay costs he incurred in making and prosecuting these matters.
[1] T3 and T43.
2. I dealt with Mr Novak’s application before the Tribunal and published reasons for my decision on 29 March 2010.[2] In those reasons I allowed time for parties to make further submissions on the issue of costs. I have had regard to those submissions.
[2] [2010] AATA 219.
3. Mr Novak says that he has incurred substantial costs; he has provided an invoice[3] from Jeffery Silk, a barrister and solicitor. Mr Novak was not represented by Mr Silk in these proceedings but asserts that Mr Silk provided him with legal advice concerning his applications under the Act: “without the advice that I did receive from my solicitor, throughout this whole process, which I am now being invoiced for, …
I would not have been able to bring any concerns about these matters to the AAT or anywhere else for that matter”.[4] Additionally, Mr Novak says that he has incurred out of pocket expenses in relation to stationery, parking, internet and computer access, photocopying, fax machine usage, diesel, transport and telephone charges.[3] Applicant’s written submissions, 18 December 2009, Attachment.
[4] Applicant’s written submissions, 7 April 2010, p2.
4. Mr Novak says that he is an invalid pensioner who is under financial duress. In his submission, he will face severe financial hardship unless the Commonwealth pays his legal costs. He asserts that it would be unfair and wrong for him to be left to pay the invoiced costs of his solicitor as “so many changes were made to the AFP FOI decisions and … so much information was found and released but only after the request was made to the AAT to look into the matters further.”[5]
[5] Applicant’s written submissions, 7 April 2010, p2.
5. As will appear I do not agree.
6. The power to make a recommendation to the Attorney-General that the costs of an applicant be paid by the Commonwealth under section 66 of the Act is not unfettered. The discretion is essentially preconditioned by an application under section 55 of the Act for ‘review of a decision constituting the action to which the complaint relates’ and by the person being ‘successful, or substantially successful, in his or her application for review’. If the discretionary power is enlivened and the preconditioning factors are met, the Tribunal must have regard to the matters set out in subsection 66(2) of the Act, and may have regard to other relevant considerations, when deciding whether to make a recommendation under subsection 66(1).
7. As Deputy President Hall said in Re Robert Paterson (No 2) and Department of Arts, Heritage & Environment[6]:
The nature of the discretion conferred upon the Tribunal is quite inconsistent, in my view, with any notion of a presumptive entitlement to costs in every case of success.
…
… the mere fact that an applicant can be seen to have been successful in his application, either by reason of a decision of the Tribunal on review or because the agency has ultimately released the documents voluntarily prior to hearing, does not, of itself, entitle the applicant to a favourable exercise of the Tribunal’s discretion.
[6] (1985) 8 ALD 227 at 234-235, [23] and [29].
8.
The AFP says, correctly in my opinion, that the power conferred by section 66 is directed only to Mr Novak’s costs ‘in relation to the proceedings’ – the proceedings in the Tribunal. Costs incurred at an earlier stage, in relation to the preparation of the original requests for access, or in relation to the internal reconsideration processes, cannot be considered under section 66. Mr Novak’s application was filed on
6 March 2009. Invoiced costs that were incurred prior to 5 March 2009 do not appear to relate to the proceedings in the Tribunal and are excluded therefore from present considerations. Furthermore on this point, the precise quantum of costs is not a matter for the Tribunal to determine, that is a matter for the Attorney-General pursuant to a recommendation of the Tribunal.[7]
[7] Subsection 66(3), Freedom of Information Act 1982; Re Rae and Department of Arts, Heritage & Environment (1985) 7 ALD 449 at 454.
9.
It can be accepted that Mr Novak’s request meets paragraph 66(1)(a) of
the Act, whether it meets paragraph 66(1)(b) is more controversial. As it appears to me it does not. It is true that a number of documents or parts of documents were released to Mr Novak prior to the hearing and, subsequently, as a result of my decision. The question is whether this means that Mr Novak has been successful, or substantially successful in his application. The meaning of that phrase, and the real test to be addressed, is whether disclosure of the documents has led to increased disclosure of information that was not previously available.[8] The test requires consideration of quantitative and qualitative elements in respect of the information disclosed by reason of the application for review.[9]
[8] Re Collins and Indigenous Business Australia [2008] AATA 505 at [4]; Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 46.
[9] Re WAJ and Ombudsman (Cth) (1999) 53 ALD 700 at 704.
10.
Mr Novak was successful in his application to the extent that he was granted access to a number of documents and parts of documents, even though the amount of information to which he obtained access at hearing was not large: of the
97 documents in dispute, access was granted on review to parts of only 15 of those documents. It is true that additional searches for documents within the scope of
Mr Novak’s requests were made during the course of the proceedings before the Tribunal and a substantial proportion of the additional documents were released, in whole or in part, to Mr Novak as a result. That alone, however, is not sufficient to satisfy the test imposed by paragraph 66(1)(b). As it appears to me, the bulk of the information that was released to Mr Novak as a result of his application for review was information to which he had already been given access by other agencies or as a result of other applications under the Act or in the court proceedings arising from the charges he faced. Thus, the quantitative element supporting his request in relation to costs is sharply offset by the qualitative element. Mr Novak has not persuaded me that he has obtained access to any information that was not already known to him. He did not gain access to information concerning alleged perjury by a third party and he did not obtain access to documents that were subject to legal professional privilege. Much of the information to which he obtained access concerned communications relating to the investigation of charges against him and information of third parties.
11.
Nevertheless, the quantum of new information to which access was granted is not fully known. This is for the simple reason that Mr Novak refused to provide details of all documents of relevance he obtained in response to other freedom of information requests to other agencies. It is clear from Mr Novak’s case at hearing, that much of the information to which he gained access was duplicative of information that had already been disclosed to him by the Director of Public Prosecutions or in court proceedings. It is plain enough that the prior disclosure of information was a significant factor in the presentation of Mr Novak’s case:
he argued that it was not appropriate for the AFP to claim exemptions over material that had already been disclosed to him by another agency. Mr Novak brought such prior disclosures to bear when challenging the adequacy of AFP searches for documents and, similarly, he identified ‘missing’ documents on a number of occasions prior to and during the hearing of his application for review. He conceded that certain documents over which exemptions were claimed were in his possession as a result of prior grants by other agencies.
12.
For this reason I am not persuaded that Mr Novak was substantially successful in these proceedings. In order to properly construe the term ‘substantially successful’ in a case such as this, where an amount of information has been disclosed, the relational meaning of the adverb ‘substantially’ must be considered against its quantitative meaning in absolute terms[10]. In the present context of
[10] Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union & Ors (1980) 27 ALR 367 at 382, per Deane J.
section 66 this connotes something that is real, of substance and considerable.[11]
[11] Re Jacobs and Department of Defence (No 2) (1988) 16 ALD 176 at 183.
As it appears to me those are not words that adequately describe Mr Novak’s success in these proceedings.
13.
For these reasons, his request concerning a recommendation for costs does not meet the second essential preconditioning criterion at paragraph 66(1)(b) of
the Act. It follows that the discretion is not enlivened and I am not able to recommend an award of costs in Mr Novak’s favour.
14. I note in closing, that even if the preconditioning criteria were satisfied, the matter would not resolve in the manner contended for by Mr Novak. Having regard to the matters set out in subsection 66(2), there is little to support Mr Novak’s proposition that his costs should be paid by the taxpayer. He has not tendered any evidence in support of his assertions concerning severe financial hardship – although severe financial hardship is not required. It is not sufficient to simply say that he is an invalid pensioner. One can accept that a person who relies on a pension for their sole income may experience some financial hardship when addressing an invoice such as that tendered by Mr Novak. But this must be established by probative evidence.
15. There is no real benefit to the general public arising from the information Mr Novak obtained as a result of these proceedings, although it can be accepted, in general terms, that each time information is released under the Act there is, at least notionally, some benefit to the public. But that does not assist Mr Novak’s case – more is required by way of a benefit to the public from the release of the particular information.[12] Much of the information has been publicly disclosed – disclosure under the Act is disclosure to the public at large and not simply to the person who made the request. As I said in my reasons for decision, the material released does not establish the existence of illegal or inappropriate activity in the AFP, which would be a matter of public interest.
[12] Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301 at 307, for example.
16.
There is no apparent commercial benefit to Mr Novak or any other person arising from the release of the information in these proceedings. And finally, it appears to me that the adequacy of AFP processes relating to Mr Novak’s requests may be attacked, and Mr Novak has done this repeatedly, both orally and in his written submissions. But those attacks are directed to processes and procedures that go to searches and identifying relevant documents within the scope of his requests; they do not go to the reasonableness of the decisions under review. It can be accepted, as I have said, that Ms Linabury could have been more thorough when satisfying herself about the adequacy of searches, but that does not render the decisions she made unreasonable. Similarly, the fact that additional documents came to light after additional searches were conducted in the course of these proceedings does not render the internal reconsideration decisions of Ms Linabury unreasonable. Certainly, it is desirable that all relevant documents should be identified early in response to a request under the Act and that a rigorous approach to such considerations at the internal reconsideration stage is required. The issue of reasonableness imports an objective test as to whether or not there was a reasonable basis for making the particular decision. As it appears to me
Ms Linabury’s decisions were made on a reasonable basis, even though a more rigorous approach could and should have been adopted in certain aspects.
Mr Novak’s submission that he was forced by these circumstances to bring the matter to this Tribunal for review before any relief was obtained is not consistent with the evidence concerning his reluctance to fully disclose information that may have assisted AFP officers to identify and locate relevant documents within the scope of his requests. Furthermore, while I have ruled on the interpretation of the terms of his request in a manner that is broader than that originally adopted by the AFP, the original interpretation was open and was not, therefore, unreasonable.
17. In sum, therefore, Mr Novak’s request for a recommendation in his favour concerning costs is rejected. The discretion under subsection 6(1) is not enlivened and, even if it were, there is not sufficient evidence or merit in Mr Novak’s request to warrant favourable exercise of the discretion in his case.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: ...................[sgd].........................................................................
J. Lakin, AssociateDate of Hearing 29 October, 10 & 14 December 2009
Date of Decision 23 April 2010
Applicant self-representedSolicitors for the Respondent DLA Phillips Fox Lawyers
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