SMITH and AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY

[2011] AATA 406

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 406

ADMINISTRATIVE APPEALS TRIBUNAL      )

)  No  2010/4634

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALAN SMITH

Applicant

And AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY

Respondent

DECISION

Tribunal  G. D. Friedman, Senior Member

Date 26 May 2011

Place Melbourne

Decision  The Tribunal affirms the decision under review.

..................[signed]............................

Senior Member

FREEDOM OF INFORMATION – Fee waiver or reduction – whether information in the general public interest or the interest of a substantial section of the public

EXTRACT OF TRANSCRIPT OF PROCEEDINGS                 [11.55 am]

MR FRIEDMAN:   The applicant Mr Alan Smith opened a holiday camp in the late 1980s at Cape Bridgewater in Victoria.  He experienced significant problems with the operation of the telephone system to his business which resulted in him complaining about the quality of service from Telecom, as it then was, later Telstra.  It would be fair to say that since then Mr Smith has been unhappy with not only the response he has received from Telstra or Telecom but a succession of regulatory bodies and other people and authorities to whom he has voiced his concern about the quality of service to his property. 

The concerns that Mr Smith had resulted in the establishment of a group called CoT, Casualties of Telecom, and later to Casualties of Telstra which acted as a form of lobby group or a collection of people who believe that they were the victims of the unsatisfactory service, as they saw it, by the provider Telstra and to the other persons or bodies to which I have referred.  In 1994 there was an arbitration conducted by Dr Gordon Hughes that sought to resolve the matters between the complainants and the relevant authorities.  It … [i]s my understanding that a number of agreements were reached between the parties as a result of the arbitration.  However, Mr Smith, it would appear from reading the documents, was unhappy with some of the outcomes from the arbitration and was not happy with the way his complaints about the arbitration were dealt with by the relevant telecommunication authorities. 

For these reasons, among others, Mr Smith has lodged a series of freedom of information requests since 2006 and he has been provided with a large volume of documents by relevant authorities since that time.  The matter before me concerns a freedom of information request dated 7 February 2010 in which he sought access to a number of categories of documents and, subsequently, there were discussions between Mr Smith and the respondent with a view to narrowing the request so that the respondent could adequately respond to the request.  The result of those negotiations was that the request was, in fact, narrowed to the extent that it, as far as the respondent is concerned, relates to a number of documents held in paper files that are now quite old and were written probably in the mid to late 1990s in relation to the matters that I have already outlined. 

When Mr Smith made his application he paid a $30 application fee, as was required under the Freedom of Information Act, and on 5 March 2010 the executive manager of the legal services division, Ms … [O’Reilly], wrote to him seeking to clarify the scope.  The categories of documents that comprise the outcome of the negotiations are set out in the respondent’s Statement of Facts and Contentions at paragraph 6, and I am not going to go through each of those except to say that they refer to a large number of documents including documents of Telecom or Telstra and offices of Telstra and various reports from the Telecom network operations and investigations, etcetera.

On 19 July 2010 a decision was made by an authorised decision maker under the Freedom of Information Act to impose charges on Mr Smith without reduction and the amount to be charged was around $1800 to process the freedom of information request.  Mr Smith then sought internal review of the decision and in support of his response to the initial decision he provided further information to the respondent.  On 3 September 2010 an authorised decision maker under the Act decided to affirm the primary decision to impose a charge on Mr Smith for processing the request.  I note that since the date of the internal review decision there have been changes to the Freedom of Information Act.  Those amendments took effect on 1 November 2010 and the regulations that accompanied the amendments to the Freedom of Information Act also came into effect.  As a consequence, there was no requirement for the respondent to review the amount of money it was proposing to charge Mr Smith, given the date of the internal review decision.  However, in the spirit of the amended Act the respondent decided to recalculate the estimate of the charge and reduce the amount it was seeking to charge Mr Smith to an amount of $1584.10.  It would seem to me that that was an appropriate course of action for the respondent to take, notwithstanding their rights under the previous Act. 

The matter I need to decide today is whether that amount should be reduced or waived under the Freedom of Information Act. The relevant section of that Act is section 29 subsection (5) which states:

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. 

In material provided to me by the applicant in relation to this matter there is no material that would suggest that he is submitting that payment of the charge or part of it would case financial hardship to him and, indeed, the tenor of his submissions today were along the lines that made no mention of that, even when it was raised by the respondent.  In my view, after taking into account subsection (5)(a) I find that payment of the charge or part of it would not cause financial hardship to Mr Smith.  That leaves the subsection (5)(b) as the critical issue on which I must make my decision today and that is 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.

In the material provided by Mr Smith he stated that he wanted the material, as I understand it, for a number of reasons.  The first one was that he is still unhappy with the way he has been treated by Telstra and the various regulatory bodies and other people, as I have already outlined, and he believes that access to the documents that he seeks will help him to expose - and I don’t believe Mr Smith would quibble with these words - a conspiracy or a cover-up or incompetence by those particular persons or bodies.  In fact, I imagine that Mr Smith would quite happily use those words and, in fact, I have seen the word “corruption” used on a number of occasions, I believe, in documents that I have read provided by Mr Smith. 

So clearly, Mr Smith still believes that there are many unanswered questions by the regulatory authorities or by Telstra that he wishes to pursue and he believes these documents will show that his unhappiness with the way he has been treated personally also will flow to other areas such as will expose the practices by Telstra and regulatory bodies which affects not only him but other people throughout Australia, not only small business people but it’s my understanding that he is saying that, generally, the general public would be shocked or would be distressed or would be surprised to learn what he says is really going on or has been going on for a number of years and has not yet been fully addressed. 

So he says that the general public or a large section of the public is most interested in what he has to say and that these documents that he is seeking will assist him to further expose the shortcomings that he believes have not yet been fully addressed.  In addition, Mr Smith said today that he had concerns about the equipment used in the cabling done at Cape Bridgewater back in the 1990s.  He said that it should - the equipment or some of the equipment should have a life of up to 40 years but, in fact, because of the terrain and the wet surfaces and other things down there the wrong equipment was used - that’s my understanding of what he is saying - and that the equipment is deteriorating fast and this is yet another example of the incompetence by Telstra which has not been addressed by regulatory authorities and that the provision of the documents that he is seeking, in addition to the documents that he has already obtained from the respondent and other authorities under freedom of information, will demonstrate that his concerns affect not only people in Cape Bridgewater but all over Australia.

That’s my understanding of Mr Smith’s arguments as to why I should waive or reduce the $1584.10 charge that is proposed by the respondent. The respondent has pointed out in its Statement of Facts and Contentions that subsection (b) of section 29 subsection (5) of the Freedom of Information Act require me to look at whether the giving of access to the documents is in the general public interests, first, and I have been referred to a number of decisions about the public interests which I will deal with before I deal with the question of a substantial section of the public.  The respondent submitted that the mere fact that documents may contain information which is of curiosity value to the public does not necessarily mean that giving access would contribute valuable material to public debate on an issue and that would be in the public interests. 

And a number of decisions have been referred to me, Re Lianos v Secretary, Department of Social Security (No 2) (1985) 9 ALD 43, and Jacobs v Department of Defence (1998) 9 AAR 446. The respondent also submitted that that I must be satisfied that the benefit of release of documents will flow to the public at large. … It’s clear that the documents that Mr Smith is seeking are largely documents, because of the fact they are now archived and in boxes in paper form, are old documents written in the mid-1990s or thereabouts. And I accept the evidence of Ms ... [Jermey] who in her affidavit set out the categories of documents and the investigations that have been taken to identify the documents within which the requested … documents reside.

…  In my view, given that Mr Smith already has a large volume of material relating to his concerns generally, I don’t see that the provision of these documents, which as I have said are old documents and may well be similar to documents he already holds by looking at the affidavit from Ms ... [Jermey], I do not see that the provision of those documents will necessarily be in the general public interests if disclosed.  These matters have been ongoing now for a long, long time.  Given the nature of the documents and the documents that have already been released, I agree with Ms ... [Arduca] that there is very little that’s likely to be disclosed that isn’t already known and I accept it. 

I have already said, Mr Smith is most unhappy with the way his complaints have been dealt with by the telecommunications provider and the regulator and the arbitrator and all sorts of other people.  But I cannot see that these documents, the subject of this request, which is all I am able to deal with at the moment, I cannot see that the provision of those documents is going to be of any extra benefit such that it would constitute being in the general public interest.  I accept what Mr Smith says, that it may raise questions.  Well, yes, it may but most of those questions have already been raised and they have been dealt with and I accept that the Telecommunication Industry Ombudsman and the Commonwealth Ombudsman and the regulators have all stated that they have investigated the issues raised by Mr Smith and they do not propose to take the issues any further. 

They have been resolved as far as those bodies are concerned.  If there were to be documents released to Mr Smith that would substantially affect that, then his argument about it being in the general public interest may have some weight.  But in my view, from what I know and what I have been told and what I accept from Ms ... [Jermey], that isn’t going to be the case with the documents that are the subject of this freedom of information request.  I ask Mr Smith about how people in Western Australia, just as an example, might be interested in the provision of material that would be contained in the documents and his response was that problems suffered by businesses and residents of Cape Bridgewater may also apply in other states and in other parts of Australia.  

… [T]hey may well …  The circumstances are completely different and what has been sought is documents relating to the Cape Bridgewater issues and Mr Smith’s issues and, in my view, do not raise a general public interest.  Mr Smith said that he is referring his latest investigations to the Senate.  Well, that may well be the case but there is no indication from what I have read that anything is going to happen … whatever the Senate decides to do that it hasn’t been able to do in the past and, remember, I am only dealing with the documents that are subject of this freedom of information request. 

And those documents are all, as I have said, very old.  In its submission the respondent has listed 10 FoI applications and 294 documents that have been released to the applicant.  That seems an extremely small number of documents from what I have seen that Mr Smith has access to and, given the amount of documents he has access to, it would seem to me that there is very little that he doesn’t know from release of those documents that is going to assist him in his current concerns.  I am not aware of any current public debate on the issues raised by Mr Smith that are relevant to these particular documents. 

Mr Smith, on previous occasions, has talked about systemic problems in Telstra and the lack of action by the regulator.  That has all been raised before and I am not aware of any current public debate that is going to be assisted by the release of those particular documents.  I can’t see that any flow-on effects would rise from the release of those documents to not only any current debate but any future debate given the age of the documents and the fact that the documents concern matters that have long since been resolved, even though the resolution has not been to the satisfaction of Mr Smith and other persons associated with him. 

So I believe that the matters raised by him, although they are important to him, I don’t believe that the general public would see any great interest in them at all.  I also take into account that the costs that have been quoted to Mr Smith, $1584.10, is a very small amount compared with the costs that is to be incurred by the respondent in processing his request, given the number of boxes, the number of documents, and the time taken and the cost of hiring an external person to go through all the documents which are not on computer to identify the relevant ones and then to process a request would be significantly far in excess of that amount and I take into account that, to me, seems like a very small amount to be asking Mr Smith to pay.

So for those reasons I believe that the giving of access to the documents in question is not in the general public interest.  And I accept the submissions that are made to me by Ms ... [Arduca] and the decisions that have been cited to me and they are, in particular, Re Encel and Secretary, Department of Broadband, Communications v the Digital Economy [2008] AATA 72. And in paragraph 85 the Tribunal said:

If the processing of the request is to be a benefit to only the person making the request, that will be a matter weighing against imposition or non-imposition of charges as it was in Re Herald and Weekly Times v Secretary, Department of Finance Administration.

And the reference to that is referred to in the decision.  I also take into account the matters that were raised by the Tribunal in Re Van De Wiel v Civil Aviation Safety Authority (2006) AATA 2007, which basically came to a similar conclusion. The second aspect of subsection (b) of section 29 of paragraph 5 was whether the giving of access to the document in question is in the interests of a substantial section of the public. There are a small number of people who are involved in the CoT group. I don’t believe that they are necessarily representative of the whole community, given that the matters referred specifically to them.

On the whole, … I haven’t been persuaded by Mr Smith that not only the general public but a substantial section of the public would have much interest in those documents, frankly, after all these years I would doubt it very … [much].  ...
… Consequently, in my view, the giving of access to the documents in question would not be in the interests of a substantial section of the public.  For those reasons I find that, taking into account all relevant matters, that it is the correct or preferable decision that I do not waive or reduce the charges that have been imposed and consequently I affirm the decision under review.

END OF EXTRACT  [12.24 pm]