Peatling and Department of Employment and Workplace Relations
[2007] AATA 1011
•12 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1011
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/413
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHANIE PEATLING Applicant
And
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date12 January 2007
PlaceSydney
Decision The decision under review is affirmed. [sgd]
Professor GD Walker
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for documents under Freedom of Information Act 1982 – request for information on Department of Employment and Workplace Relations welfare to work package – request for final documents on which 2005-2006 Federal Budget decision made – decision made to impose application fee and impose charges related to processing FOI application – decision affirmed.
Freedom of Information Act 1982 ss 29, 30A
Attorney-General’s Department FOI Memorandum No 29: Fees and Charges
News Corporation Ltd National Companies and Securities Commission (No 4) (1984) 1 FCR 64
Searle Australia Pty Limited v Public Interest Advocacy Centre and Anor (1992) 36 FCR 111
Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165
Re Waterford and Attorney-General’s Department (No 2) (1986) 9 ALD 482
Re Herald and Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251
WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (unreported, Handley & Hodgson, McColl JJA, 24 April 2006)
Cazalas v United States Department of Justice (1983) 709 F.2d 1051, 1053
Cashman and Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
McKinnon v Secretary, Department of the Treasury (2006) 229 ALR 187
News Corporation Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64
Re Australian Privacy Foundation and Attorney-General’s Department (2005) 42 AAR 89
Re Van De Wiel and Civil Aviation Safety Authority (2006) 42 AAR 313
Re Proudfoot and Department of the Treasury (1994) 35 ALD 692
REASONS FOR DECISION
12 January 2007 Professor GD Walker, Deputy President Summary
1. The applicant, Stephanie Peatling, a journalist in the employ of the Sydney Morning Herald, applied to the respondent, the Department of Employment and Workplace Relations, for the release of information under the Freedom of Information Act 1982 (the FoI Act) relating to departmental and agency documents gathered when formulating the federal government’s “Welfare-to-Work” package announced in the federal budget in May 2006. As part of her request, the applicant requested that any fees charged “be halved for the public interest” in accordance with Freedom of Information (FoI) guidelines.
2. A delegate of the respondent decided that the documents requested would be released upon payment of $30.00 application fee and $13, 055.50 being the charges associated with the processing of the applicant’s FoI application and that part of the fees and charges would not be remitted. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal to determine in this case is whether the FoI application fee and fee for processing the FoI application should be reduced pursuant to s 29(5) of the FoI Act.
Background
4. Ms Stephanie Peatling is a journalist employed by the Sydney Morning Herald (SMH or the Herald). On 24 October 2005, Ms Peatling, in her capacity as political reporter for the SMH, made a request to the respondent under the Freedom of Information Act 1982 (“the FoI Act”) for access to “departmental and agency documents gathered as part of formulating the Federal Government’s “Welfare-to-Work” package. (It was not disputed that the effective applicant was not Ms Peatling personally but John Fairfax Publications Pty Ltd, which owns the Herald.) The request included ‘all data, papers, briefings, modelling, research, submissions and ministerial correspondence from and between the Minister’s office, the department and its agencies from January to October 2005’. Ms Peatling also requested ‘that any fees charged be halved for the public interest’ (T3). On 7 November 2005, the respondent notified the applicant that her application was not a valid request because it was too large and did not provide sufficient information to enable the documents sought to be identified. She was also advised that a decision in respect of the application fee and applicable charges would be made as soon as practicable (T4).
5.
By facsimile sent on 6 December 2005, the applicant explained to the team leader of the corporate law team of the respondent that she would
‘particularly like to see any documents in relation to economic modelling that was done on how the welfare system will affect recipients including how many people will be affected, how many people are expected to get jobs, the financial impact on people receiving welfare under the new system and how the new system compares with welfare systems in other countries’ (at T5).On 14 December 2005, the group manager of the working age policy group of the respondent acknowledged receipt of Ms Peatling’s clarification and informed her that an estimate of the charges for processing her request would be provided shortly (T8).
6. By facsimile dated 21 December 2005, Fiona Grove, a member of the administrative law team of the respondent authorised to make decisions under the FoI Act, informed Ms Peatling that after considering her request for a partial remittal of the application fee of $30.00 she was not satisfied that she had adequately shown how the documents requested would benefit the public at large or a substantial section of the public. Ms Grove stated:
You have not provided any reasons or evidence to support your assertion that if the documents are released they will be made available to the public, or a substantial section of the public, nor that release of the documents will stimulate public debate. Accordingly, I am not satisfied that you have adequately shown how the provision of the documents requested will benefit the public at large or a substantial section of the public. The fact you are a journalist acting in your professional capacity is not, in and of itself, a ground for the partial remission of the application fee.
In addition, she found that payment of the fee would not cause financial hardship to the applicant (T10). The delegate also assessed the charge for processing the applicant’s FOI application at $13,069.15. On 19 January 2006, the applicant sought an internal review of the assessed charges, which she considered “unacceptable” (T11).
7. On 16 February 2006, Genevieve Davin, team leader of the administrative law team, acting as a review officer, wrote to the applicant advising her that it was her decision to impose the application fee and charge in full. Ms Davin found there was no evidence of financial hardship and that disclosure of the documents would not, on balance, be in the public interest. She further stated:
I accept that the Welfare to Work policy, and welfare system reforms more generally, were the subject of public and media comment during 2005. I also accept that these issues may be of interest to welfare recipients, and to some other members of the community more broadly. However, in determining whether the giving of access to the documents sought is in the general public interest or in the interest of a substantial section of the public, one test to be satisfied is whether the benefit from the release of the information contained in the particular documents will flow to the public at large, or a substantial section of the public.
I note that you have indicated in your letter dated 19 January 2006, that your employer, ‘The Sydney Morning Herald’, “… one of the country’s leading broadsheets … is extremely interested in publishing more stories based on the development of this policy”. However, I am not satisfied that the benefit of the release of the information contained in the documents will flow to the public at large, or a substantial section of the public. You have not indicated how you (or your employer) will make the actual documents, or their contents, available to the public. You (or your employer) may choose not to make all of the information contained in the documents available, nor all of the documents themselves available, depending on whether or not the documents contain information which you (or your employer) consider to be “newsworthy”, or of significance.
In your letter dated 24 October 2005, you referred to the “legislation’s guidelines”. I note that the Freedom of Information Memorandum number 29, prepared by the Attorney General’s Department, states that “… there is no automatic remission of fees or reduction or non-imposition of charges in the public interest for journalists.” I have also considered your claim that your employer is “one of the country’s leading broadsheets” and, in accordance with Freedom of Information Memorandum number 29, I have taken the possible commercial benefit of publication of “more stories based on the development of this policy” into account. On balance, I consider that the possible commercial benefit to the ‘The Sydney Morning Herald’ weighs against the benefits to the public of giving access to the documents. However, in accordance with Freedom of Information Memorandum number 29, I have not attached great weight to this factor.
Taking the above matters into consideration, I find that disclosure of documents to you under this Freedom of Information request would not, on balance, be in the public interest. Accordingly, this ground for remission of the application fee and reduction or non imposition of the charge is not made out.
8. Ms Davin also informed Ms Peatling that the respondent was under no obligation to prepare a schedule of documents (a time-consuming and resource-intensive process) until the processing charge was paid or the department made a decision not to impose the charge, that the fees and charges were found to be reasonable and correct and informing her of her appeal rights to the AAT. On 12 April 2006, Ms Peatling lodged an application with the tribunal for a review of that decision.
9. At the hearing, the applicant was represented by Mark Polden, in-house counsel for the Sydney Morning Herald, instructed and assisted by Matthew Moore, Herald FoI editor, and the respondent was represented by Stephen Gageler, senior counsel, with Francois Kunc, counsel, instructed by Alexander (Lex) Holcombe, solicitor, Phillips Fox lawyers. The documents provided to the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the evidence presented by the parties at the hearing. Oral evidence was given for the respondent by Lex Holcombe. The applicant’s witnesses were not required for cross-examination and gave no oral evidence.
Relevant legislation
10. The relevant legislation in this matter is the Freedom of Information Act 1982. The relevant sections relating to the imposition of charges associated with the processing of FoI applications and application fees are as follows:
29. Charges
(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.
…
30A. Remission of application fees
(1) Where:
(a) there is, in respect of an application to an agency or Minister under subsection 15(1) requesting access to a document or under subsection 54(1) requesting a review of a decision relating to a document, an application fee (whether or not the fee has been paid); and
(b) the agency or Minister considers that the fee or a part of the fee should be remitted for any reason, including either of the following reasons:
(i) the payment of the fee or of the part of the fee would cause or caused financial hardship to the applicant or a person on whose behalf the application was made;
(iii) the giving of access is in the general public interest or in the interest of a substantial section of the public;
the agency or Minister may remit the fee or the part of the fee.
(1A) The applicant may make a written request for the application fee to be wholly or partly remitted under subsection (1). The agency or Minister must take all reasonable steps to enable the applicant to be notified of the decision on the request as soon as practicable, but in any case no later than 30 days after the day on which the request was made.
(1B) If:
(a) that period of 30 days has ended; and
(b) the applicant has not received notice of a decision on the request;
the agency or the Minister, as the case requires, is taken, for all purposes of this Act, to have made, on the last day of the period, a decision to the effect that no part of the application fee is to be remitted.
(2) Where the whole or a part of an application fee is remitted under subsection (1), then, to the extent of the remission, there shall not, for the purposes of subsection 15(2) or 54(1), as the case may be, be taken to be an application fee in respect of the application.
(3) If:
(a) a person makes a written request for an application fee to be remitted, in whole or in part; and
(b) the agency or Minister makes a decision to refuse the request, in whole or in part;
the agency or Minister, as the case requires, must give the applicant written notice of the reasons for the decision.
11. The Attorney-General’s Department FOI Memorandum No 29: Fees and Charges (Memo 29) also provides guidance on the above sections. The memorandum, effective from 25 October 1991, states that the Government’s policy is that, where applicable, fees should be collected and processing and access charges imposed by agencies for FoI requests except where there is reason for remission of fees and for reduction or non-imposition of charges including on the grounds of financial hardship and public interest. Memo 29 states:
Reasons for remission of fees or reduction or non-imposition of charges
Financial hardship
83. The Senate Standing Committee on Constitutional and Legal Affairs (as it was then) in its report on the Freedom of Information Bill 1978 observed that:
We believe that the case for allowing for the discretionary waiver or reduction of fees where an applicant is impecunious is unanswerable, and there should be an explicit power conferred upon ministers and agencies to this effect. What counts as 'impecuniosity' should depend in any particular case both upon the means of any particular applicant or organisation on the one hand, and upon the amount of fees and charges in issue on the other. To take a single example, the retrieval and copying of a two-page social security record may represent a minimum financial burden even for a pensioner, while the retrieval and copying of all files bearing upon a long-running repatriation compensation matter might on the other hand represent a substantial imposition for anyone. (paragraph 11.41 of the Committee's Report)
84. While the particular examples used by the Senate Committee are now expressly covered by the exclusion from fees and charges of requests for income support documents (see paras 8-11 above and reg.6), the basic principle remains that financial hardship to the applicant has to be judged by considering both the applicant's financial circumstances and the magnitude of the particular fee or charge of which remission, or reduction or non-imposition, is sought. The AAT has said that financial hardship means more than an applicant having to meet a charge from his own resources (Re Bailey and Commonwealth Tertiary Education Commission (D166)). Some of the decisions of the AAT on the similar hardship test in s.66(2) may be helpful. Because it is essentially a case by case approach, no firm guidelines can be laid down.
85. Where remission, or reduction or non-imposition, is sought on the basis of financial hardship, an agency is entitled to seek such information as it wishes from the applicant concerning his or her means. But the inquiry must be proportioned according to the amount of the charge involved. Except where large amounts are in issue, which would not often be the case where the request is made by an individual applicant, a detailed inquiry into the applicant's means would hardly be justified. In most cases, an inquiry as to income, estimated weekly commitments and available cash in bank or building society or like accounts would provide a sufficient basis for assessing the degree of hardship involved in the payment of a charge.
Public interest
86. In recommending a power to remit charges on the grounds of public interest, the 1978 Senate Committee said:
We also believe that there should be explicit provision, as in the United States, for reduction or waiver by agencies or ministers when the provision of information 'can be considered as primarily benefiting the general public' rather than being for the benefit or gain of the individual applicant. It is likely to have particular utility for community interest organisations and groups, working in such areas as environment protection, education, social welfare and civil liberties, who operate on shoestring budgets yet are intimately concerned with the kind of policy formulation in the public interest that it is one of the basic objectives of any freedom of information to promote.
(paragraph 11.42 of the Committee's Report)
87. Remission of application fees (s.30A), and reduction or non-imposition of charges (s.29), on public interest grounds, depends on whether 'the giving of access' is in the general public interest, or a substantial section of the public, not on whether 'the granting of remission' is in the public interest. This reason does not apply where the giving of access would primarily be of benefit only to the person making the request.
88. In this context 'in the public interest' is used in the sense of something which is of benefit to the public.
89. The first question to consider is, therefore, whether the benefit from the release of the information contained in the particular documents will flow to the public at large, or a substantial section of the public, as well as to the specific individual or organisation who or which requested the documents concerned (the question of end use). If no benefit will flow to the public from access, because the information will not be made publicly available, the public interest reason for remission, or reduction or non-imposition, has not been satisfied.
90. The second question is whether, in the light of all the circumstances, making the specific information in the particular documents more widely available would be 'in the public interest' in the above sense (para.88). This requires a consideration of both the contents of the documents as a whole and of the context of their release.
91. The fact that the document may contain information which may be of curiosity value to the public, or a substantial section of the public, does not necessarily mean that giving access to the document is 'in the public interest'. On the other hand, if the giving of access to the specific documents would contribute valuable material to public debate on an issue, doing so will be in the public interest. However, lack of public discussion before release need not mean that the giving of access is not in the public interest. Giving access to information which would benefit the general public, or a substantial section of the public, if it were made more widely known is in the public interest whether or not there is an existing debate (e.g. where giving access would publicise the effects of a dangerous substance, or where public debate about an issue is likely to follow and would benefit the public). (See Re Bailey and Commonwealth Tertiary Education Commission (D166) for a rare example where the AAT commented on a request for remission on public interest grounds. The AAT said that disclosure of documents, which prima facie establish that a Minister issued a misleading press release with regard to expenditure of public monies, was in the general public interest. In that case, however, the AAT held that the public interest had been adequately satisfied by release of other documents in response to an earlier FOI request.)
92. A decision to remit a fee, or reduce or not to impose a charge, on public interest grounds is a decision that there is at least some public benefit from giving access to the documents as a whole. That does not prevent an agency later concluding that the public interest in disclosure of some or all documents is on balance outweighed by other public interest considerations against disclosure embodied in specific exemptions. If an agency concludes that giving access would be in the public interest in a particular case, it should grant full remission of fees or not impose any charges in the absence of any other relevant countervailing factor. Where there are other relevant countervailing factors they should be weighed against the public interest in giving access, and this may (but need not) result in partial or no remission or reduction (see para.81 above).
12. While the guidelines are not binding on the tribunal and should not be applied so as to impose requirements that go beyond the statute (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634), they do help to ensure consistency in decision-making (see Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695).
Sub-issues
13. It was not disputed that the Welfare-to-Work program is a matter of public interest. The controversy at the hearing focussed on whether the release of the documents that are within the scope of the applicant’s FoI request is in the general public interest or in the interest of a substantial section of the public within s 29(5)(b) of the Freedom of Information Act 1982 and so warrants a reduction of the FoI charges.
14. At the hearing the applicant did not proceed with the financial hardship aspect of its case (s 29(5)(a)), but that limb of the test cannot be disregarded, as the section makes it clear that the decision-maker must take it into account.
15. The evidence and submissions were directed to six sub-issues:
·Whether there was a serious issue about whether most of the documents would be exempt from disclosure under s 34, s 36 or s 44(1)(b);
·Whether the documents, if released to the applicant, would come to the attention of the public or a substantial section of the public and add to its knowledge of relevant matters;
·Whether the information contained in the documents is potentially confusing or misleading;
·Whether material parts of the information have been overtaken by events and are out of date;
·Whether the information contains overtly, or embedded in it, in a way that is capable of being discerned by an appropriately qualified person, highly sensitive economic information which, if released, could cause persons or organisations to distort their behaviour, with potentially adverse impacts on personal, company or broader economic performance; and
·Whether there are any countervailing considerations to be weighed against the public interest in granting access.
16. The application for review was brought before the tribunal pursuant to s 55(1)(d) of the FoI Act. Section 61(1) of the FoI Act places a statutory burden of proof on the respondent to establish that the decision was justified. It is therefore convenient to consider the respondent’s evidence first.
Evidence for the respondent
17. Mr Alexander Holcombe, a partner in Phillips Fox having the carriage of the matter on behalf of the respondent, swore an affidavit dated 25 August 2006 (Exhibit R3). Mr Holcombe has had extensive experience in FoI matters, including in the capacity of FoI co-ordinator at the then Department of Industry, Science and Regional Development, and later had FoI responsibilities as an officer in the Civil Aviation Safety Authority. He swore the affidavit on the basis of information provided to him by officers of DEWR and through his inspection of documents, and belief in the statements made to him by those officers, as well as his own observation of the documents. Almost all the statements he makes in the affidavit are thus on information and belief, but to avoid repetition I will not mention that fact again.
18. In addition, he personally examined some 2,600 pages of the approximately 2,900 pages of documents that come within the scope of the request. He thought it possible that some of the documents he examined would not be within the scope of the request if the decision-maker under the FoI Act was later to consider them.
19. The first set of documents that Mr Holcombe examined was held in a locked class B safe within the offices of the Working Age Task Force. Mr Holcombe noted that the file covers were orange and marked prominently with a “Cabinet-In-Confidence” label. They contained inter alia policy documents to inform cabinet documents and submissions on the Welfare-to-Work policies, costing information tables, internal documents relating to policy options, research papers, ministerial correspondence, email referring to policy options, policy reference group meeting notes detailing policy and costing options, and cabinet documents marked “Cabinet-In-Confidence”. Next, he inspected files that were kept in a locked class B safe by the group manager, Working Age Policy Group. Their contents included draft cabinet briefings, draft question and answers, costings information including estimates, data and assumptions, draft questions and answers and draft cabinet submissions.
20. The next group of documents he inspected were held by the Employment Policy Branch in a locked filing cabinet. The assistant director in charge told Mr Holcombe that the original files on which the documents he inspected are maintained are orange in colour and marked “Cabinet-In-Confidence”. The documents included new policy costing request documents marked “Cabinet-In-Confidence”, a copy of the final costings spreadsheet, emails discussing and deliberating on assumptions contained in the policies (many of the emails being marked “confidential” and “protected”), and internal DEWR departmental costing documents. The assistant director told Mr Holcombe that sensitivities existing in relation to those documents stemmed from the fact that some were submitted to cabinet for discussion and reflected cabinet instructions, some contained information that might be sensitive to Centrelink and the copy of the final costings contained highly classified information from Treasury on indexation and employment figures.
21. Next, Mr Holcombe inspected five documents held by the Mature Age Policy Branch that related to the applicant’s FoI request. He noticed that many of them were marked “Cabinet-In-Confidence”. They consisted of emails detailing policy discussions and assumptions, new policy costing requests marked “Cabinet-In-Confidence”, new policy proposals also marked “Cabinet-In-Confidence”, and ministerial briefing and summary documents relating to the costings spreadsheets. He was told by the responsible officers that the documents were sensitive because some aspects of the mature age policy were later refined after the 2005-2006 budget, so that some of them had been superseded. The summary documents included highly classified Treasury indexation data and the policy proposals were developed specifically to produce information to feed into a cabinet submission.
22. The fifth set of documents consisted of six files held by the Disability Policy Branch. One group of files had a cream-coloured file cover marked prominently with “In-Confidence” labels. The other type had an orange file cover that was prominently marked with “Cabinet-In-Confidence” labels. The contents included extracts from costing spreadsheets, printouts of DSP-related costings, draft and final new policy costing requests marked “Cabinet-In-Confidence”, internal documents marked “Cabinet-In-Confidence”, internal working documents marked “highly protected” and emails bearing the same markings.
23. Those documents were sensitive because they included internal working documents recording policy deliberations and discussions, the copies of the costings and the summary documents of the costing spreadsheets include highly classified Treasury indexation data, and some were developed specifically to produce information for use in a cabinet submission.
24. Mr Holcombe inspected five of the eight relevant files held by the Administered Estimates and Costings Branch. They were kept in a locked class B safe and the file covers were cream-coloured and marked prominently with “In-Confidence” labels. The characteristics and public interest issues in relation to those documents are the same as applied to the costings spreadsheets, as the information in those files is mainly the same as in a costings spreadsheet.
25. The costings spreadsheets are an important part of the material requested. They figured prominently in the respondent’s argument that much of the material requested was likely to fall within one of the exemptions from FoI access. There are three separate sets of costing spreadsheets that relate to Disability Support Payments and a single set of spreadsheets relating to the other five Welfare-to-Work measures. When printed, each spreadsheet is normally between 20 and 70 A3 pages in length. Each costing is set out in an Excel workbook and contains between 8 and 15 separate spreadsheet tabs.
26. The tabs include information on such matters as the population groups that will qualify or cease to qualify for payments, the history of changes to policies, parameters and assumptions, and predictive information provided by Treasury on the consumer price index (CPI) or other indexation factors such as male total average weekly earnings that is used in making costing calculations. This predictive information is highly classified and is not publicly available. DEWR officers explained to Mr Holcombe that the costings spreadsheets involved a number of issues relevant to the processing of the applicant’s FoI request. For example, the final summary sheets contained information that went to cabinet as part of the cabinet deliberation and approval process; the costings spreadsheets had been prepared specifically to inform cabinet of the financial implications of proposals considered and ultimately agreed to as part of Welfare-to-Work. The costings included sensitive information that it is not in the general public interest to release, such as forecast economic parameters that are used to estimate the financial impact of a measure across the forward estimates period. The release of such information about government expectations of future economic performance could cause people or organisations, or both, to distort their behaviour, with potentially adverse impacts on personal, company or broader economic performance.
27. The spreadsheets containing modelling of various aspects of the reforms reflected previous cabinet decisions on policy development and were prepared for submission to cabinet as part of the budget process. Much of that information is now considerably dated, while there is a wealth of up-to-date information in the public arena about the reforms.
28. Predictive data on employment trends, demographic changes, childcare places and information on employment service providers is highly confidential, Mr Holcombe said. Two particularly sensitive items are forecasted indexation factors such as CPI or male total average weekly earnings that are used to determine rates of income support payments in the future, and estimates of the number of people likely to be receiving an income support payment. That information is embedded in costings spreadsheets and it is possible to identify or derive it from costings if it were to be released to the public.
29. When Mr Holcombe was examining the electronic copy of the costing that related to very long-term unemployed, he asked the DEWR officers what would happen to the amounts in the costings if the sensitive values were omitted from the spreadsheet. A demonstration by a DEWR officer showed that deleting sensitive information had the effect that many of the values in the costing calculation pages changed to zero and the values in the summary pages had altered significantly. All costing worksheets would be similarly affected if values were omitted. Further, the costings do not necessarily fully reflect current government policy and releasing them could confuse or mislead the public.
30. In addition, certain important factors such as the number of new jobs likely to be created as a result of the reforms are not reflected in the modelling assumptions in a costings spreadsheet. The purpose of the spreadsheets is primarily to estimate the direct financial impact on government outlays. A reader would not be informed about many of the broader economic impacts of the reforms and could be confused or misled by the information as it does not represent broader economic effects that are likely to flow from the reforms.
31. Mr Holcombe also spoke with the director of the Economic and Labour Market Analysis Branch Advice Section, who is responsible for the 30 documents kept by that branch that are relevant to the FoI request. He learned that the relevant documents included spreadsheets with calculations of second-round employment effects, and documents providing discussion and deliberation on whether those calculations should be included in the final costings. As those calculations were not included in the final costings, the information in the documents does not reflect the impact of current government policy.
32. Mr Holcombe’s affidavit also pointed out that much information drawn from the documents within the scope of the request had been made public via the official budget papers, on government information websites concerning the Welfare-to-Work changes, and in response to parliamentary questions on notice. Since the applicant made her FoI request on 24 October 2005, much information about the reforms had been made public through the Senate Expenditure Review Committee Hearings, by DEWR, by Centrelink and by ministers. Mr Holcombe listed, and provided copies of, numerous examples of information products that are publicly available, including the Welfare-to-Work mass-media campaign kit, government websites, information booklets, DVDs, information packs, direct mail letters, budget kits and fact sheets. This and similar material, including large numbers of answers to parliamentary questions, placed in the public arena much of the detail that the applicant had sought in her FoI request. DEWR officials estimated that the majority of the documents that were assessed as coming within the scope of the FoI request contain information that is sensitive or confidential in nature. They estimated that over 90 percent of the documents contained such information.
33. Mr Polden criticised the fact that Mr Holcombe’s evidence relied mainly on information and belief and said it did not establish a factual base for the respondent’s expressed concerns about economic detriments and impacts. The present application, however, relates only to the possible reduction of charges and has no bearing on whether or not the applicant ultimately obtains access to all or some of the documents in the request. It is analogous to an interlocutory procedure, and hearsay or information and belief evidence is normally accepted in such proceedings.
34. Mr Holcombe was a particularly cautious witness and made conspicuous efforts to avoid giving any answers that went beyond his own knowledge or the information with which he had been supplied by DEWR. In the course of his lengthy cross-examination by Mr Polden and Mr Moore, however, he did concede that there was no evidence to show that the information in the documents was unlikely to find its way to public attention, or that the applicant would gain any commercial benefit from it or that the information would not assist public debate on the Welfare-to-Work reforms. He also agreed that there was no rule preventing the release of sensitive information, as such through the FoI process and that by redacting printed copies of the costings spreadsheets it would be possible to avoid the automatic alteration or nullification of other values.
35. The respondent also tendered an affidavit dated 27 June 2006 by Mr Sam North (Exhibit R4), managing editor of the Herald. The affidavit had been filed by the applicant, and at the hearing was tendered by the respondent. The affidavit related to aspects of the Herald’s commercial and financial situation and will be referred to in that context later.
Evidence for the applicant
36. Mr Tony Harris is an experienced economics journalist, part-time academic and former senior Commonwealth public servant. He has had extensive experience in the conduct of economic modelling and the developing of costings of both government revenue and expenditure measures. While deputy secretary of the Department of Immigration, Local Government and Ethnic Affairs, he was responsible for the freedom of information function and was intimately familiar with the way in which requests for access were managed. From 1992 to 1999, he was auditor-general of New South Wales. In that role, he reported to the New South Wales parliament on all aspects of the administrations of the state’s executive government. He managed the audit office and was responsible for the conduct of the audit program across the government.
37. In Mr Harris’s opinion, the Welfare-to-Work reforms raise important public interest issues including the impact on charitable institutions, state and territory governments and bodies such as the Australian Council of Social Service (ACOSS). He believes the breadth of the policy suggests that members of the public wishing to assess the merits of the reforms would benefit from a properly informed understanding of it. He would expect the documents requested which relate specifically to the reforms would deal with such matters as changes to income tests, existing and projected participation levels, changed compliance measures, projected population groups able to access payments and services, parameters and assumptions underlying costings and projected changes in the profile and number of claimants.
38. Mr Harris believes that by failing to include all of the likely effects of the Welfare-to-Work policy in the forward estimates and projections of revenue, the government had provided less than accurate estimates of the budget “bottom line” and may not have represented accurately the future consequences of the policy. Officially published documents do not make it possible to determine whether the government’s claims for the reforms take full account of the most probable assumptions and consequences relating to them. The information in many of the documents described by Mr Holcombe’s affidavit would contribute to an analyst’s capacity to assess whether the effects claimed by the government for the policy are reasonable. Many of the documents are likely to contain information that is not already in the public domain. Releasing it would not create a risk that the public would be misled or confused because it is common practice, particularly in economic policy, for the public generally to rely on informed experts such as those employed within academia and the media to analyse documents released by government and communicate their import.
39. The fact that each of the documents in issue is now more than 18 months old does not mean that their release would not make a valuable contribution to the public debate. Economists and policy analysts are very experienced in reading and understanding documents that discuss options that were not settled at the time that was drafted, and that recommend or outline courses of action that were not ultimately taken. Even if some of them reflected partly-considered matters and tentative conclusions, they would be unlikely to mislead or confuse the public because it is highly improbable that DEWR would have provided advice on such matters without making clear the limitations on the consideration of the matter at that time. Further, access to them would enable electors to understand some of the impacts of options not implemented by the government. Any DEWR estimates, projections, costings and other numerical analysis relating to revenue and expenditure programs would identify and disclose the key variables and assumptions underpinning any estimate. As regards spreadsheets, any experienced accountant or economist would be able to examine them and determine with great accuracy the nature of the data included within them.
40. Assertions that material could be misleading, Mr Harris continued, are premised on the assumption that the audience for the documents in question is uninformed. But the people who would read those documents, if released, such as economic journalists and other practising economists and researchers, would have the expertise to read and understand any technical terms used within any of the documents in question. Mr Harris did not see how any of the information that might be released could distort individual or corporate behaviour so as to produce adverse consequences. That view represented an older attitude to the release of such data that was seldom advanced today. In any event many government publications for benefits or licenses advised applicants of the tests that would be imposed on applicants. Those publications do allow persons to change or craft their behaviour to meet the requirements to qualify for available benefits, but the government had not to date suggested that such publications lead to adverse behaviour.
41. Mr Michael Raper, director of the Welfare Rights Centre, Sydney, and a past president of ACOSS, swore an affidavit dated 9 November 2006 (Exhibit A4). The Welfare-to-Work reforms had become a main focus of the centre’s policy and advocacy activities from 2005, he said. The centre had prepared an extensive submission for the Senate inquiry into the bill and had discussed the legislation in detail with DEWR officers. He stated that while some additional information on the likely impact of the policy was released through the Senate inquiry, a great deal of information had not been made public. In his view it is extremely important for detailed information to be available on the implications of the policy, such as how many people the government expected would move into work.
42. Mr Raper disputed Mr Holcombe’s assertion that much of the information on the impact of the policy is in the public domain. To Mr Raper’s knowledge, there had been no public disclosure of the actual or projected financial aspects of a number of changes introduced by the new compliance system or about the impact of the changes on individuals, notably those who would be assessed for the Disability Support Pension. It would be useful to know whether the government had made any assumptions in the modelling and policy documents about any possible deterrent effect that the policy might have on prospective applicants.
43. Mr Raper also disagreed with the objection that some of the information in the documents has been superseded because of changes made after the budget announcements. The changes, he said, had been few, minor and all at the margin. As to the suggestion that access to some of the documents could be confusing and misleading for the public, he countered that much of the information already placed in the public arena had been confusing and misleading itself.
44. Mr Sam North, managing editor of the Sydney Morning Herald, deposed in another affidavit of 6 June 2006 (Exhibit A5) that the editor of the Herald, Mr Alan Oakley, had recently appointed Mr Matthew Moore as the paper’s freedom of information editor. The Herald believed that access to the material requested in the FoI application is in the public interest and intends to publish it for that reason. The Herald would not expect any change to circulation or any commercial benefit as a result of publishing it, and indeed the cost of allocating two journalists to work on the issue, plus the cost of in-house legal counsel, could be expected significantly to outweigh any possible commercial benefit from publishing stories about the Welfare-to-Work scheme.
45. The Herald had sought the documents because it believes there is a legitimate public interest in knowing what impact the policy was expected to have when it was implemented.
46. Mr Oakley’s affidavit dated 10 November 2006 (Exhibit A6) confirmed that Mr Oakley had appointed an FoI editor for the Herald soon after he had taken over as editor because the issue of access to government information was and is a high priority for him. The Herald is committed to exercising its rights under the FoI Act and believes it has a duty to seek information via FoI that is in the public interest. He regards it as his job to try to avoid “spin” by using FoI legislation to obtain access to source documents which can be used to explain and analyse government policy in a balanced way and to test the accuracy of public pronouncements. The Herald website has the capacity to post any material released by reason of the FoI request and it is Mr Oakley’s intention to do that if the material is released. He pointed out that the Herald frequently carries news stories, then posts on-line the full reports on which they are based. The Herald website is the most accessed news website in Australia, so material posted on the paper’s site is extremely accessible to the bulk of the population.
47. The Herald has already published widely on this subject, Mr Oakley continued, with a large number of news stories, feature stories and opinion pieces on it. If the documents covered by the request are released, he intends to post them online, in connection with both the hard-copy and on-line editions of the paper and to publish links via which readers could access the complete material on the website. There is no technical difficulty about publishing any of it, including the spreadsheets. He rejects Mr Holcombe’s assertion that the benefit of the information contained in the material would not flow to the public or a significant section of the public.
48. Mr Oakley argued that there is a strong and legitimate public interest in seeing the original data and modelling on which the Welfare-to-Work policy is based. There is no risk at all that the public could be confused or misled, as the Herald employs a large number of senior reporting staff who have the capacity to analyse and explain complex information, and also has access to a wide range of specialist commentators with expertise in economics, policy development, welfare, labour markets and related fields. If access were granted to some or all of the material, he would intend to extend an invitation to the Minister for Workplace Relations to submit an op-ed piece to the Herald. But in order to carry out its role as a conduit for and facilitator of informed criticism of government policy, the Herald needed access to underlying projections, estimates and assumptions on which the government had relied in the process of policy formation. In his view it was “nonsense” to say that CPI projections are too sensitive to release, or that demographic projections are sensitive. There are multiple other sources for such projections, and there was no justification for classifying such material as too sensitive to release.
49. Any suggestion that the Herald was seeking this information for commercial reasons, or that it would make any commercial gain from publication of it is absolutely wrong, Mr Oakley said. There would be no change to the Herald’s sales figures or revenue at all, in fact there would be a cost to the paper in addition to the costs in pursuing the application in the AAT:
The Herald has a limited amount of money available to spend on FoI matters,and upfront costs in the order of those imposed by DEWR in the present case are a very substantial disincentive to the paper using FoI at a level we should be using it, in the pubic [sic] interest
Application of the Law and Findings of Fact
50. As was stated above, the issue for the tribunal is whether the application fee and charges imposed for processing the applicant’s FoI request should be remitted or reduced on the grounds that payment would cause financial hardship to the applicant or that the giving of access to the documents is in the general public interest or in the interests of a substantial section of the public. In proceedings of this nature the onus of proof is on the respondent (s 61(1)). It was accepted on both sides that the relevant time at which the public interest is assessed is the time of the present review.
51. The issues raised by this application have, of course, no bearing whatever on whether the applicant will ultimately be granted access to the documents requested or whether the respondent will be exempted from disclosing any of them.
52. In her statement of facts and contentions (Exhibit A1), the applicant contended that the tribunal must bear in mind the overriding object of the FoI Act, which is to extend as far as possible the right of the Australian community to access to information in the possession of the government, Further, the applicant contended that the Act should be interpreted according to the words used, bearing in mind its stated objects (referring the tribunal to News Corporation v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 at 66; Searle Australia Limited v Public Interest Advocacy Centre and Anor (1992) 36 FCR 111 at 115). She also referred the tribunal to Memo 29, and in particular the guidelines for the remission and reduction of fees and charges. The applicant submits that the original decision-maker of 21 December 2005 appears to have departed from, or failed to interpret or apply, the relevant policy guidelines set out in Memo 29 and that the decision under review follows the same “flawed approach”. In particular, it was submitted that the original decision maker had failed to have regard to paragraph 98 of the guidelines or the questions in sections 29(5)(a) and 30A(1)(b)(i) of the FoI Act. The applicant submitted:
Public Interest
57. The sole ground for the original decision, and substantive ground for the decision on internal review, appears to be based on the supposition, contrary to all of the evidence, that information which of its very nature would be legitimate and proper public interest would not reach the public at large, or a substantial segment thereof, as it could not be inferred that The Sydney Morning Herald was seeking access to it for the purpose of publication or dissemination. The proposition only need be stated, to demonstrate its weakness.
Financial Hardship
58. Although the respondent has nowhere suggested, nor is it the fact, that both limbs of section 29 and 30A need to be satisfied in order to enliven the discretion to grant remission of charges or application fees in whole or in part, the applicant can demonstrate that payment of the charges would cause financial hardship, and that the practical effect of their application in the particular case would be such as to present insuperable barriers to proceeding further with the request, and thus would be antithetical to the objectives and proper operation of the FOI Act.
53. In its statement of facts and contentions (Exhibit R2), the respondent submitted that financial hardship must be something more than an applicant having to meet a charge from his or her own resources (relying on Re Bailey and Commonwealth Tertiary Education Commission (1986) 12 ALD 165) and that there was no doubt that the applicant’s employer, the Sydney Morning Herald, would be well able to pay the $13,069.15. Further, it was submitted that a commercial decision as to the allocation of funds to meet particular expenses does not support a conclusion of financial hardship (relying on Re Waterford and Attorney-General’s Department (No 2) (1986) 9 ALD 482; Re Herald and Weekly Times and Secretary, Department of Finance and Administration (2000) 31 AAR 251).
54. With regard to public interest, the respondent submitted that the test to be applied in respect to sections 29(5) and 30A(1)(b) is whether ‘the giving of access’ is in the ‘general public interest, or a substantial section of the public’ not whether ‘the granting of remissions’ is in the public interest. The respondent submitted that it is necessary to consider the type of documents sought, referring the tribunal to the decision in Re Herald and Weekly Times (supra), where the tribunal said:
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.
55. The respondent argued that when the nature and volume of the documents caught by the request is examined, the tribunal would not be satisfied that the documents would be published in the Sydney Morning Herald or otherwise come to the attention of the public nor would disclosure of the documents add to that which is already publicly known. Further, the respondent submitted there are other reasons why release of the documents is not in the public interest, namely:
(a) the information is potentially misleading;
(b)material parts of the information has been overtaken by events and is out of date;
(c)the information contains overtly or embedded in it (in a way that is capable of being discerned by an appropriately qualified person) highly sensitive economic information which is kept confidential and, in the public interest, not released so as to prevent persons or organisations distorting their behaviour with potentially adverse impacts on personal, company or broader economic performance.
Those further considerations supported the way in which the Memo 29 was applied and should be applied by the tribunal, bearing in mind that the memo constitutes guidelines only and that neither the decision-maker below nor the tribunal are bound to apply it.
56. At the hearing the parties supplemented those submissions in light of the whole of the evidence. It is convenient to set out my findings and conclusions under the various sub-issues listed above.
· Effect of possible exemption claims
57. It was not disputed that many of the files covered by the request are marked “Cabinet-In-Confidence”, or “in-Confidence”, or “highly protected”, or “protected”. They are kept in locked safes or in locked filing cabinets. The Cabinet Handbook, Fifth edition 2004 (part Exhibit R8) states that all cabinet documents are marked “Cabinet-In-Confidence” and must be handled strictly in accordance with the instructions for the handling of sensitive or classified matter set out in the Protective Security Manual and access to them must be restricted to officers with a definite need to know.
58. Officers handling cabinet documents which carry the “Cabinet-In-Confidence” marking should have a “position of trust” clearance at the “protected” level. Some cabinet documents carry either a “highly protected” or national security classification as well as the “Cabinet-In-Confidence” marking. The Protective Security Manual, 2005 edition (part Exhibit R8) is a lengthy document setting out protective security policies and related matters, including how to assign protective markings to non-national security information. It notes that all documents prepared for consideration by cabinet, including those in preparation, are to be marked Cabinet-In-Confidence regardless of any other security consideration (page C19).
59. Mr Holcombe deposed that he was informed by DEWR officers that over 90 percent of the documents falling within the scope of the FoI request contain information that is sensitive or confidential. The FoI costing estimate prepared for the applicant proceeded on the basis that only about 315 pages of the requested material could be released (T p15).
60. It was not disputed that the Welfare-to-Work program is a matter of public interest, both from the standpoint of those people who receive welfare payments (see Mr Raper’s evidence) and the standpoint of the workers who pay them (see Saunders, Australia’s Welfare Habit, Centre for Independent Studies, 2003). Mr Gageler submitted, however, that s 3(1)(b) of the FoI Act clearly implies that there is no public interest in access to exempt documents. There is a serious issue as to whether many, or most, of the documents are exempted by ss 34, 36 or 44(1)(b). The evidence relating to the process of labelling files with markings such as “Cabinet-In-Confidence” suggests that the label so applied is a good guide to the security status of the contents of the document. It was clear that multiple exemptions would need to be applied in the process of classifying the documents for release or for an exemption claim and it was possible that only about 10 percent of them would ultimately be releasable. On that basis, he argued, the tribunal could not be satisfied that giving access to the documents is in the public interest within s 29(5)(b).
61. Mr Polden for the applicant began by invoking McColl JA’s statement of statutory FoI principles in WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 (unreported, Handley & Hodgson, McColl JJA, 24 April 2006). Writing on behalf of the New South Wales Court of Appeal, her Honour stated that the Act operates on the premise that there is a public interest in the public having access to government information to facilitate the public’s ability to discuss, review and criticise government action. That reflected the proposition that governments act, or are constitutionally required to act, in the public interest. Information is held, received and imparted by governments to further the public interest. Mr Polden also noted Beazley J’s approving reference to Cazalas v United States Department of Justice (1983) 709 F2d 1051, 1053, in which it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community (cited in Cashman and Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301). Memo 29 contained no reference to the relevance of exemption claims, nor did it suggest that any balancing of the public interest against the possibility of exemption should be carried out. Even a prima facie case for exemption would not disentitle an applicant seeking a reduction of charges under s 29(5).
62. Especially bearing in mind that a considerable, though unstated, number of the documents covered by the request bear the label “Cabinet-In-Confidence”, I find that there is a real prospect that many, and perhaps most, of the documents sought could be the subject of successful claims for exemption.
63. Nevertheless, even on the respondent’s own estimate, some 315 pages of documents could be releasable. Whatever the position might be if all the documents covered by the request were, for example, marked “Cabinet-In-Confidence”, the evidence in this application, together with the general principles expressed in s 3 and articulated in the decided cases, lead to the conclusion that the fact that only some of the documents might ultimately be released should not be taken to disentitle the applicant under s 29(5)(b).
· Whether the documents would come to the public’s attention and add to its knowledge
64. Although the lack of any guarantee that the documents covered by the request would, if released, come to the attention of the public was treated as an important consideration in the decision under review, the evidence at the hearing caused its importance to diminish considerably. Mr Oakley explained his intention to place the documents on the Herald’s website and pointed out that the Herald frequently carries news stories, then posts on-line the full reports on which they are based. The Herald has already published large numbers of news stories, feature articles and opinion pieces on this subject and plans to continue to do so.
65. If the documents are released, he intends to post them on-line in connection with both the hardcopy and the on-line editions of the paper and to publish links enabling readers to access the complete material on the website. There is no technical difficulty about publishing any of it, including the spreadsheets. Of particular interest were the underlying projections, estimates and assumptions on which the government had relied while developing the policy.
66. Mr Harris also said that much of the material was not yet in the public domain, notably the records of options not adopted, tentative conclusions, key variables and assumptions. Mr Raper was of the same view, saying that there had been no public disclosure of the financial aspects of some changes on individuals, such as people applying for DSP.
67. There is little doubt that the Herald would publish news stories and articles dealing with the information contained in the documents if they were released. It would also link those articles and stories to the original source materials on-line. The respondent argued that availability of documents on-line is not the same thing as documents being brought to the attention of the public. While that is true, it is also true that academics, journalists and other researchers today are well equipped to locate and make use of such materials in their published writings.
68. As regards the question whether the documents would add to public knowledge on the issues involved, the respondent argued that it was a matter of degree. The area had not previously been unexplored, being a major reform package that was scrutinised by the Senate Estimates Committee and the Legislation Committee. Annexure 50 to Mr Holcombe’s affidavit showed that there was already much information on this subject in the public arena. While that is true, the evidence of Mr Harris and Mr Raper, which is uncontradicted in this respect, identifies a number of areas, such as key variables, tentative conclusions and assumptions, that have not been made known to the public.
69. There does not appear to be any legal basis on which a tribunal or other decision-maker could conclude that there has been enough debate on an issue of public interest or that there is nothing significant left to discuss. To do so would be an attempt to proclaim an official truth.
70. I am therefore satisfied that the documents would, if released, come to the public’s attention and would add to its knowledge of the issues surrounding the Welfare-to-Work reforms.
· Whether the information contained in the documents is potentially misleading or confusing
71. In its statement of facts and contentions the respondent submitted that the information contained in the documents to which access is sought is potentially misleading. Mr Holcombe in his affidavit (Exhibit R3 para 65) stated that certain important factors such as the number of new jobs that may be created as a result of the reforms are not reflected in the modelling assumptions in a costings spreadsheet. The purpose of costings spreadsheets is primarily to estimate the direct financial impact on government outlays:
A person viewing those documents would not be informed about many of the broader economic impacts of the reforms. In fact, it is likely that they would be confused and misled by the information as it does not represent broader economic effects which may occur as a result of the reforms.
72. In cross-examination Mr Holcombe said that the costings were not a cost-benefit analysis incorporating “second round” effects and did not show expected positive impacts on such factors as employment. They did not even forecast the estimated saving in welfare payments. He conceded, however, that the concern that people would be misled was premised on the assumption that an uninformed person would be reading the documents.
73. In applying s 29 to these facts the tribunal must be guided by a recent decision of the High Court, McKinnon v Secretary, Department of the Treasury (2006) 229 ALR 187, a matter which arose under s 58(5) of the FoI Act. The question was whether there existed reasonable grounds for the minister’s claim that disclosure of the documents would be contrary to the public interest.
74.
The inquiry undertaken by a court under s 58(5) is perhaps a more limited one than the application of s 29. In the former case the court is considering whether there are reasonable grounds for an opinion about the public interest, whereas in the latter the tribunal is deciding where it thinks the public interest actually lies. As Gleeson CJ (who on this point was in the majority) explained in McKinnon, “It is undoubtedly correct that the tribunal’s function under section 58(5) is not to decide whether the tribunal is satisfied that disclosure would be contrary to the public interest” (at p192). Nevertheless, a court (or the tribunal applying s 58(5)) should take account of all relevant considerations:
It does not follow, however, that the tribunal is not required to take account of all relevant considerations, or that the circumstance that there is something relevant to be put against disclosure is the end of the matter. It is not the end; it is the beginning (ibid)
.
75. Mr Polden submitted that the comments of Callinan and Heydon JJ in that case were apposite to the present review, and Mr Gageler proceeded on the same basis.
76. In McKinnon the respondent had argued that the absence of any explanation of the variables used or the assumptions relied on in the documents in question would lead to their content being taken out of context. That would create the potential to lead to confusion and to mislead the public. Callinan and Heydon JJ, writing for the majority, rejected that contention:
It is, we think, unrealistic for any minister to believe that he or she can control or dictate the context in which matters of public interest are debated. All that a minister can do is seek to explain the data and to provide as accurate a context for it as possible (at p220).
77. The court also rejected the argument that the public could not be trusted to understand the technicalities of, and the jargon used in otherwise revealable documents. “It is not as if the public is unaided by experts and others who can, including, for example, an informed journalist such as Mr Harris” (ibid) (this was the same Mr Harris as the one who gave evidence in the present case). For similar reasons their Honours rejected the argument that what might be disclosed could well be misrepresented, abbreviated or distorted, or at least not presented in a balanced way (at 221).
78. The arguments advanced by the respondent in relation to this sub-issue are very similar to those rejected by the High Court in McKinnon. Accordingly, I conclude that the claim that the information contained in the documents is potentially misleading or confusing does not make their release contrary to the public interest.
· Whether material parts of the information have been overtaken by events and are out-of-date
79. Mr Holcombe’s affidavit stated that some aspects of the mature age policy were refined after the 2005-2006 budget, with the result that some of the documents he inspected had been superseded (Exhibit R3, para 40). Some costings in the documents did not necessarily fully reflect current government policy and some contained information on aspects of policy that were considered but changed before the budget, or never used. Many of the values in the spreadsheets are interdependent (paras 62-63). A small refinement on one piece of cost data, he elaborated in cross-examination, could have a significant impact on other data in the spreadsheet. Releasing information on these matters could be confusing and misleading to the public.
80. Mr Polden in his submissions rejected that proposition, arguing that there was little chance that the public would be confused and misled because the documents if released would show on their face if they were tentative or prepared for limited purposes. Redacting a printed version of a spreadsheet would eliminate the problem created by the interdependency of various data values.
81. In his cross-examination of Mr Holcombe, Mr Moore put this partly rhetorical question: if the documents could not be released when they were current, and could not be released once they had become superseded, when would be a good time to obtain them? Presumably one answer to that question would be that they could be obtained after 30 years in the normal way. Nevertheless, without the High Court’s guidance in McKinnon, I would have been inclined to think that the release of documents containing information that for one reason or another was superseded and out-of-date could still be in the public interest inasmuch as it might lead to greater understanding, or at least debate, about the process of budgetary policy-making.
82. In McKinnon the respondent argued that the release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public. It would not make a valuable contribution to the public debate and could undermine the public integrity of the government’s decision-making process by not fairly disclosing reasons for the final position reached. The released material of a provisional nature could be taken wrongly to represent a final position, which it was not intended to do, and ultimately may not have been used or have been overtaken by subsequent events or further drafts (at 208).
83. A majority of the High Court adopted that submission: “It is difficult to see how it would not be reasonable for a minister to take the view that the release of material of that kind would not make a valuable contribution to public debate” (at 220). I therefore conclude that the release of the superseded documents would not be in the public interest.
· Whether the information contains overtly, or embedded in it, in a way capable of being discerned by an appropriately qualified person, highly sensitive economic information which, if released, could cause persons or organisations to distort their behaviour, with potentially adverse impacts on personal, company or broader economic performance
84. Mr Holcombe deposed that the costings spreadsheets prepared for cabinet on the financial implications of the Welfare-to-Work proposals included sensitive information that it was not in the general public interest to release. That information included forecasted economic parameters that are not made public by the government, such as forecast consumer price index (CPI), male total average weekly earnings (MTAWE) and projected numbers for unemployment benefit recipients (UBR), which are classified “highly protected”.
85. Forecasts of those parameters are built into costings in order to estimate the financial impact of a measure across the forward estimates period (the budget year and three subsequent financial years). Mr Holcombe was informed that if a costing were released it would be possible for a person who understood economic or econometrics or spreadsheets to identify or derive those projected economic parameters. Release of that information could cause people or organisations, or both, to distort their behaviour with potentially adverse impacts on personal, company or broader economic performance (Exhibit R3, paras 61.3-61.5).
86. Sensitive information on forecasted CPI, MTAWE or other indexation factors is embedded in costings spreadsheets and it would be possible to identify the confidential CPI, MTAWE or UBR and other forecasts from costings if they were released to the public (paras 61.8-61.11).
87. At the hearing Mr Holcombe said that on his understanding, although the costings were based on the best available information and were the product of rigorous work, public disclosure could affect a wide range of people and alter the impact of the program. He did not agree that the concerns expressed to him related only to a limited subset within the costings spreadsheets.
88. It has long been accepted that a government’s budget and supporting documents must remain confidential until the budget is delivered in parliament in order to prevent rampant speculation that could be harmful to many people and impair economic performance. The evidence in this case does not go so far as to aver that publication of the documents in question might ignite detrimental speculation, but it does assert that release of projections for up to 10 years ahead could cause adjustments in individual and corporate behaviour that would not be beneficial. In McKinnon, the court criticised the fact that “the argument on both sides was conducted at a disconcerting level of abstraction” (at 193, see also 196). The respondent’s evidence on this point does not suffer from that defect but, on the other hand, neither is it so comprehensive as to permit a confident conclusion in the respondent’s favour on this point. For instance, it gives no examples of the kinds of behavioural changes that might occur and show why they would be detrimental. As the respondent bears a statutory burden of proof in these proceedings, I conclude that the respondent has not established this ground.
89. If the process of review ended there, I might have been prepared to find that the applicant had, on balance, made out a case under s 29(5) on the basis that giving access to the documents would be in the public interest. It is now necessary, however, to consider possible countervailing factors.
· Whether there are any countervailing considerations to be weighed against the public interest in granting access
90. Several provisions of Memo 29 are relevant to the application of s 29(5). Paragraph 4 states the general government policy that these fees and charges should be collected except where one of the reasons for remission or reduction is established. The level of these end charges is described as providing for partial, but not full, cost recovery by agencies and is designed to ensure that users of the FoI Act make a contribution towards the costs of providing FoI access to documents. It also points out that in exercising any discretions in relation to fees and charges, decision-makers should bear in mind that s 3(2) requires that decision-makers as far as possible facilitate and promote the disclosure of information promptly and “at the lowest reasonable cost”.
91. Paragraph 81 provides inter alia that where an applicant establishes one of the two reasons in s 29(5), then in the absence of other relevant countervailing considerations, charges should be reduced or not imposed.
Any relevant countervailing considerations should be carefully weighed against the strength of the other established reasons … The following are examples of relevant countervailing considerations:
Where the applicant could reasonably be expected to obtain a commercial or other benefit from disclosure (this should not be inferred lightly; …)
92. Paragraph 92 directs inter alia that if an agency concludes that giving access would be in the public interest in a particular case, it should grant full remission of fees or not impose any charges in the absence of any other relevant countervailing factor.
93. Paragraph 98 notes that there is no automatic remission of fees or reduction or non-imposition of charges for journalists.
While the question of possible commercial benefit to the publisher of the newspaper or journal may be a relevant factor to take into consideration (though in a specific instance the commercial benefit of publication is unlikely to be very great, and the paper or journal may often be performing a public service by publishing the results of FoI request), it may not be of great weight when balanced against the benefits to the public of giving access.
94. Paragraph 99 stresses that “All other relevant reasons must be taken into account in making remission, reduction and non-imposition decisions”, while Paragraph 100 states that partial remission or reduction may be appropriate where the decision-maker considers it reasonable for the applicant to meet part of the fee or charge from his or her own resources, eg, because of expected commercial gain.
95. It should also be noted that the reference in s 3(2) of the FoI Act to the production of the documents “at the lowest reasonable cost” acknowledges that there is a cost in the FoI process and that the applicant should bear a “reasonable” proportion of it.
96. In the WorkCover case, the New South Wales Court of Appeal held, following the Full Court of the Federal Court in News Corporation Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 at 66, that when applying the FoI Act the correct approach was not to lean towards a wide interpretation of the Act’s provisions but when considering exemptions to lean towards a narrow interpretation, but to give a correct balance of the competing public interests (at paras 148-151).
97. The applicant in this case did not claim that payment of the charge would cause her financial hardship, nor did she allege that the charge had been wrongly or unreasonably assessed.
98. Mr North’s evidence was that the Herald would not expect any change to circulation or any commercial benefit whatever to result from publishing the material. Indeed, the cost of two journalists working on the issue, plus the cost of in-house legal counsel, would be expected significantly to outweigh any possible commercial gain from publishing stories about the Welfare-to-Work scheme. Mr Oakley expressed a similar view and added that the Herald has a limited amount of money available to spend on FoI matters, and the charges imposed by the respondent in the present case are “a very substantial disincentive to the paper using FoI at the level we should be using it”. Neither witness, however, said that if the s 29(4) application were unsuccessful, the Herald would not proceed with the application for access to the documents in question.
99. The respondent pointed out, on the other hand, that the 2005 annual report of John Fairfax Holdings Limited showed that during the year group revenues had increased by 5.9 percent to $1.88 billion, leading to an after tax profit that had increased by $7 million to $241.1 million (exhibit “J” to Exhibit R3, p48). This showed, Mr Leeming argued, that it could afford to do whatever it takes to obtain the documents in question and that its constraints could have no bearing on the present case. The respondent, as Memo 29 showed (T p37), did not seek full cost recovery and the issue was whether Fairfax or the taxpayer should meet the administrative costs incurred.
100. Neither party cited any case in which a newspaper has been granted under s 29(4) a remission or a reduction of any fee or charge, and most such applications have been unsuccessful.
101. In Re Herald and Weekly Times (supra), the then president of this tribunal, O’Connor J, in rejecting an application to waive or reduce a charge, noted that s 29 establishes the prima facie position that charges should be imposed so that applicants contribute to the cost of processing all their requests (31 AAR at 268). “In this case”, her Honour noted, “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”.
102. Her Honour also observed 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” (ibid).
103. The applicant seeks to distinguish that case on the basis that it involved 75,000 pages of documents, a far larger number than sought in the present case, and that the applicant had not offered to pay any part of the charge, unlike the applicant in the present case. While that is true, her Honour’s remarks about the prima facie position requiring applicants to contribute to the cost of processing their requests and the relevance of the fact that the request was made for the purposes of the newspaper’s business remain pertinent.
104. In Re Australian Privacy Foundation and Attorney-General’s Department (2005) 42 AAR 89, Senior Member Kelly rejected an application under s 29(4) by a non-profit organisation, though she was prepared to assume in its favour that access to the documents would be in the general public interest within the meaning of s 29(5)(b). But the charge was not going to cause the applicant financial hardship. “There was no evidence that if the charge was imposed the APF would not proceed with the application. It is appropriate that the processing fee be charged” (at 94).
105. Re Van De Wiel and Civil Aviation Safety Authority (2006) 42 AAR 313 dealt with the application of s 29(5) to an individual seeking documents that concerned him personally but also had a bearing on the public interest. In seeking to balance the competing aims embodied in the legislation, Deputy President Forgie said that the balance
needs to be determined by what is a fair and appropriate thing in each case having regard to the use that is to be made of the documents, the cost to the public and the workload that cost reflects and the benefit that can be obtained by the public in granting access (at para 34).
The applicant’s financial circumstances were not such that he could readily afford to pay the charges for the documents, even though paying for them would not cause him financial hardship within the meaning of s 29(5)(a). Taking all matters into account, Forgie DP considered that the charges should not be imposed for such of the documents as the applicant had not already received.
106. An individual rather than a corporation was again the applicant in Re Proudfoot and Department of the Treasury (1994) 35 ALD 692. About half the documents he requested became the subject of a certificate under s 36(1)(a) as being internal working documents, and it was thus conclusively presumed that their disclosure would be contrary to the public interest. Deputy President McMahon accordingly reduced the charge by half. It thus appears that the applicant was required to pay the full charge for the documents that could be disclosed to him.
107. One countervailing factor specifically mentioned in Memo 29 and in Re Herald and Weekly Times is that the applicant would gain a commercial benefit from access to the documents. The applicant’s uncontradicted evidence in this case is that the Herald would be unlikely to experience any increase in sales or profitability as a result of publishing material derived from the documents. The applicant also referred to the Fairfax Newspapers Charter of Editorial Independence, in which the proprietors acknowledge among other things “that journalists, artists and photographers must record the affairs of the city, state, nation and the world, fairly, fully and regardless of any commercial, political or personal interests, including those of any proprietors, shareholders or board members”.
108. On a narrow reading, the term “commercial benefit” is more apt to describe, for example, the case of a publisher using FoI legislation to obtain from a state government information about road developments for the purpose of publishing it in a commercially released directory, than the continuing operations of a news media outlet.
109. Nor could a commercial benefit as such disqualify a newspaper under s 29. An independent news media outlet cannot remain in operation for long unless it is profitable, and paragraph 98 of Memo 29 expressly notes that “the paper or journal may often be performing a public service by publishing the results of FoI requests”.
110. In similar vein, the political philosopher Alexis de Tocqueville observed two centuries ago that one could not have real newspapers without democracy, and one could not have democracy without newspapers. Thomas Jefferson, writing in 1787, went further:
The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter (letter to Edward Carrington: Lipscomb and Berg eds., The Writings of Thomas Jefferson, Memorial Edition, Washington DC 1904, vol 6, page 57).
111. Earlier, in a letter to John Jay in 1786, he had written that “Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it”. Jefferson adhered to those views all his life, even though he suffered severely as a result of scurrilous and mendacious press attacks throughout his presidency.
112. Nor could a newspaper publisher be automatically disentitled under s 29 because it is large as well as profitable. The fact that the Fairfax group in 1995 made a net profit after tax of $241.1 million does not mean that it can afford to be profligate or that it need not take care in the use of its funds. In his second affidavit (Exhibit R4), Mr North explained that any bill for an FoI application at the Herald exceeding $200 requires approval by a senior staff editor, while approval to spend more than $5,000 on an FoI request could only be given by the most senior members of the company and only when the paper was confident it would result in the disclosure of information of the highest public interest. One would expect to find controls of that nature in any well-run organisation.
113. But countervailing considerations do not appear to be limited to commercial benefit in any narrow or immediate sense. Paragraph 81 of Memo 29 itself refers to “a commercial or other benefit” (my emphasis). In Re Herald and Weekly Times, O’Connor J plainly gave weight to the fact that the applicant was seeking the documents for the purposes of its business as a newspaper publisher. A further factor identified in Re Australian Privacy Foundation was whether there was any evidence that the applicant would not be able to proceed with the request for access if the charge were not reduced or waived.
114. Those references in Memo 29 and the decided cases indicate the existence of a countervailing factor applicable to s 29(4) applications by news media outlets where the request for access is made in the ordinary course of the media organisation’s business and there is no evidence that it could not proceed with the request if the charges were not waived or reduced.
115. The evidence in this case shows that the Herald intends to publish news stories and feature articles derived from the information in the requested documents as part of its normal newspaper publishing activities. The Herald has a freedom of information editor and lodged over 60 FoI requests in the first six months of 2006 alone. It has established internal procedures for approving the payment of FoI fees and charges. The request for access to the Welfare-to-Work documents is thus plainly made in the ordinary course of the Herald’s newspaper publishing business. Further, there is no evidence that the Herald will not proceed with the request if the application for reduction of the charges does not succeed. Mr Polden very properly conceded as much, although he argued that the evidence “comes close” to saying so.
116. The factor I have identified does not mean that a profitable news outlet could never satisfy s 29(5). For example, a country radio station might meet the test if it were seeking access to documents containing information of direct importance to those living in its reception area but the charges were beyond the resources it could allocate to news gathering. So might a capital city broadsheet investigating a matter of public importance that involved such a quantity of material created over a long period that it could not commercially absorb the charges. In each case the application could be characterised as not being within the ordinary course of the applicant’s business. The applicant might also be able to show that it could not proceed with the request unless the charges were waived or reduced.
117. Mr Oakley deposed that “upfront costs of the order of those imposed by DEWR in the present case are a very substantial disincentive to the paper using FoI at a level we should be using it”. There can be little doubt that charges of the order of $13,069.15, whether individually or cumulatively, are a disincentive to FoI requests. But all pricing operates by providing incentives and disincentives to use more or less of particular resources, thereby tending towards the ultimate maximisation of consumer welfare. The existence of disincentive effects does not in itself mean that the charge should be reduced.
118. Mr Moore went further in his opening remarks and in Exhibit A2, arguing that the respondent had frustrated the impact of the FoI Act and that the imposition of such charges would make use of the Act in practical terms unworkable. The media would not pursue FoI applications if it were required to meet full fees, he said. In fact, however, the Herald has been pursuing FoI requests, 60 of them in the first six months of 2006 alone, apparently without the benefit of any fee reductions. The argument that such charges make the Act unworkable, in the absence of evidence of hardship or that the Herald would not proceed with the request unless the charges are reduced, is essentially an argument about policy that finds no support in the legislation and guidelines as they stand. It is a matter for political debate in the public arena.
119. I therefore conclude that countervailing considerations outweigh the public interest values in s 29(5)(b). The decision under review should be affirmed
I certify that the 119 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
[Sgd]: BKS (Associate to DP Walker)
Date/s of Hearing 20, 21 and 22 November 2006
Date of Decision 12 January 2007Counsel for the Applicant Mr M Polden, In-House Counsel, Sydney Morning Herald
Solicitor for the Applicant Mr M Moore
Counsel for the Respondent Mr S Gageler SC and Mr F Kunc
Solicitor for the Respondent Mr L Holcombe, Australian Government Solicitor
7
0