VMQD and Commissioner of Taxation (Freedom of information)
[2018] AATA 4619
•17 December 2018
VMQD and Commissioner of Taxation (Freedom of information) [2018] AATA 4619 (17 December 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2018/2117
VMQDRe:
APPLICANT
AndCommissioner of Taxation
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 December 2018
Place:Sydney
The decision under review is affirmed.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – access – practical refusal reason – whether work involved in processing request would substantially and unreasonably divert the resources of the agency from its other operations – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Taxation Administration Act 1953 (Cth)
CASES
12 Years Juice Foods Australia Pty Ltd v Commissioner of Taxation [2015] FCA 741
Adrian Wright and Department of Human Services (Freedom of Information) [2017) AICmr 127
AFY18 v Minister for Home Affairs [2018] FCA 1566
Aloysia Brooks and Department of the Prime Minister and Cabinet [2015] AICmr 66
AP and Department of Human Services [2013] AICmr 78
AR and Australian Federal Police [2013] AICmr 80
Cainfrano v Director General, Premier’s Department [2006] NSWADT 137
Christopher Ballam and Shire of Toodyay, Re [2009] WAICmr 4 Cunningham and Rural Adjustment and Finance Corporation, Re [1996] WAICmr 29
Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Dreyfus v Attorney-General [2015] AATA 995
EU and Department of Human Services [2015) AICmr 15
FF and Australian Taxation Office [2015] AICmr 25
Fist and Australian Broadcasting Corporation [2014] AICmr 14
FX and Department of Prime Minister and Cabinet [2015] AICmr 39
Gurjit Singh and Attorney-General’s Department [2015] AICmr 20
JC and Department of Health [2016] AICmr 47
KT and Department of Foreign Affairs and Trade [2017] AICmr 15
MZ and Department of Communications and the Arts [2017] AICmr 109
NJ and Department of Home Affairs [2018] AICmr 12
NX and Australian Trade and Investments Commission [2018] AICmr 18
National Archives and Records Administration v Favish 541 U.S. 157
OM and Australian Taxation Office (Freedom of Information) [2018] AICmr 41
Park and SMHS – Royal Perth Hospital [2014] WAICmr 18
Paul Farrell and Prime Minister of Australia [2017] AICmr 44
QVFT and Secretary, Department of Immigration and Citizenship [2012] AATA 501
Re Christopher Ballam and Shire of Tooday [2009] WAICmr 4
Re Cunningham and Rural Adjustment and Finance Corporation [1996] WAICmr 29
Re Langer and Telstra Corporation Ltd [2002] 68 ALD 762
Re Prinn and Department of Defence [2016] AATA 445
Shi v Migration Agents Registration Authority [2008] HCA 31
SRB and SRC and Department of Health, Housing, Local Government and Community Services [1994] AATA 79
Tate and Director, Australian War Memorial [2015] AATA 107
Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees’ Union and Ors [1979] 27 ALR 367
VMQD and Commissioner of Taxation (Taxation) [2017] AATA 846
VMQD and Commissioner of Taxation (Taxation) [2017] AATA 1430
VMQD and Commissioner of Taxation (Taxation) [2018] AATA 3147
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioners under s 93A of the Freedom of Information Act 1982 (combined May 2018)
Office of the Information Commissioner: Report to the Attorney General: Review of Charges under the Freedom of Information Act (2011)
Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Freedom of Information (1979)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
17 December 2018
I: BRIEF OUTLINE
The origin of this appeal
This is an appeal to the Tribunal against a decision made by the Australian Information Commissioner (the “Information Commissioner”) affirming a decision made by the Australian Taxation Office (the “ATO”) to refuse a request which had been made by VMQD (the “Applicant”) for access to certain documents under the Freedom of Information Act 1982 (the “Act”).
The Applicant’s request to the ATO was made on 21 October 2016 and the ATO’s final refusal decision was made on 15 December 2016.
The Applicant’s appeal to the Information Commissioner for a review of that ATO decision was made on 21 February 2017 and the Information Commissioner’s decision affirming the ATO’s refusal decision was made on 21 March 2018.[1]
[1] “OM” and Australian Taxation Office (Freedom of Information) [2018] AICmr 4.1
The appeal to this Tribunal was made on 18 April 2018 and heard by the Tribunal on 20 November 2018.
The material sought by the Applicant
In his original application to the ATO, VMQD sought access to three discrete but inter-related sets of documents covering the period from 1 August 2003 to 21 October 2016.[2] Details of these documents appear below.
[2] Section 37 – T Documents at [24]-[47].
The refusal by the ATO
After giving initial consideration to the Applicant’s request, on 7 November 2016 the ATO wrote to VMQD advising of their intention to refuse his request on the basis that providing the information would substantially and unreasonably divert resources of the ATO away from its other necessary operations. It based this assessment on a calculation that the amount of material requested by VMQD encompassed between 5,600 and 7,600 pages of documents which would take up to 380 staff hours or more than 63 staff days to process.[3]
[3] Ibid at [48].
II: FREEDOM OF INFORMATION ACT 1982
The Act came into force in 1982 after a long and complex gestation which stretches back to the report of the Senate Standing Committee on Constitutional and Legal Affairs of 1979.[4] That report urged that any legislation should make it clear that its underlying principle was to make as much information available to applicants as possible and that restrictions on access should be limited to only those instances legislatively prescribed by the Parliament itself.
[4] Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Freedom of Information (1979).For the sake of full disclosure, the Senior Member hearing this application was a member of the Senate Committee at the relevant time and involved in authorship of the Report.
It is necessary to set out several sections of the Act because, to a certain extent, it is procedurally driven – there are certain specified procedures which must be followed from the initial request stage, through the decision-making process to arrangements for reviews of and appeals against, decisions by agencies.
The underpinning philosophy of the Act is reflected in two objectives clauses :
(3) Objects--general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government's activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
(3A) Objects--information or documents otherwise accessible
Scope
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a) in the case of the power to publish the information or document--despite any restriction on the publication of the information or document under this Act; and
(b) in the case of the power to give access to the information or document--whether or not access to the information or document has been requested under section 15.
An equally significant objective of the Act is to ensure that access to material is open to as wide a group of people as possible by using the term “every person” with no further qualifications[5] and specifying that the motivations of applicants should be treated as irrelevant.
[5] For example, applicants do not need to be Australian citizens nor people with any form of prescribed interests in the material requested.
(11) Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
Although taken from American jurisprudence, this philosophy has been described by the United States Supreme Court in the following terms:
“FOIA is often explained as a means for citizens to know ‘what the Government is up to’. This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy. The statement confirms that, as a general rule, when documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they are seeking the information. A person requesting the information needs no preconceived idea of the uses the data might serve. The information belongs to citizens to do with as they choose.”[6]
[6] National Archives and Records Administration v Favish 541 U.S. 157 at [171]-[172].
There is a formal process for making requests, both in terms of defining how access to documents should be sought and the forms in which such requests must be made.
(11A) Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has been paid.
(2) This section applies subject to this Act.
Note: Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A
(objects—information or documents otherwise accessible)).(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6) Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).
(15) Requests for access
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
Requirements for request
(2) The request must:
(a) be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the following ways:
(a) delivery to an officer of the agency, or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory;
(b) postage by pre-paid post to an address mentioned in paragraph (a);
(c) sending by electronic communication to an electronic address specified by the agency or Minister.
Agency required to assist
(3) Where a person:
(a) wishes to make a request to an agency; or
(b) has made to an agency a request that does not comply with this section; it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner that complies with this section.
Note: An agency or Minister may refuse to deal with a request if satisfied that a practical refusal reason exists, after undertaking the request consultation process (see section 24).
(4) Where a person has directed to an agency a request that should have been directed to another agency or to a Minister, it is the duty of the first-mentioned agency to take reasonable steps to assist the person to direct the request to the appropriate agency or Minister.
Timeframes for dealing with request
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and
(b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).
(5A) In making a decision on a request, the agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of section 93A.
Extension of processing period to comply with requirements of section 26A, 27 or 27A
(6) Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b):
(a) the period is extended by a further period of 30 days; and
(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.
Extension of processing period to consult foreign entity
(7) Subsection (8) applies if, in relation to a request, the agency or Minister determines in writing that it is appropriate to extend the period referred to in paragraph (5)(b) so that the agency or Minister can:
(a) consult one of the following:
(i) a foreign government;
(ii) an authority of a foreign government;
(iii) an international organisation; and
(b) determine whether the document that is the subject of the request is an exempt document under subparagraph 33(a)(iii) or paragraph 33(b).
(8) If this subsection applies:
(a) the period referred to in paragraph (5)(b) is extended by a period of 30 days; and
(b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been extended.
The Senate Committee report recognised that the idea that any person could apply for any document, unless those documents were exempt under some other provision of the Act, could have serious resource implications for agencies required to administer requests.[7] This legitimate concern is reflected in the Act as follows:
[7] Senate Standing Committee on Constitutional and Legal Affairs, Parliament of Australia, Freedom of Information (1979) pages 69-84.
(24) Power to refuse request--diversion of resources etc.
(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a) must undertake a request consultation process (see section 24AB); and
(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists--the agency or Minister may refuse to give access to the document in accordance with the request.
(2) For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a) the requests relate to the same document or documents; or
(b) the requests relate to documents, the subject matter of which is substantially the same.
(24AA) When does a practical refusal reason exist?(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i) in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations; or
(ii) in the case of a Minister--would substantially and unreasonably interfere with the performance of the Minister's functions;
(b) the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
(2) Subject to subsection (3), but without limiting the matters to which the agency or Minister may have regard, in deciding whether a practical refusal reason exists, the agency or Minister must have regard to the resources that would have to be used for the following:
(a) identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister;
(b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for:
(i) examining the document; or
(ii) consulting with any person or body in relation to the request;
(c) making a copy, or an edited copy, of the document;
(d) notifying any interim or final decision on the request.
(3) In deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:
(a) any reasons that the applicant gives for requesting access; or
(b) the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or
(c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.
Section 24 establishes a regime whereby, if a request is deemed, on initial assessment, as being likely to be refused because complying with it would unreasonably divert the resources of the Agency, then the Agency and the Applicant are required to enter into a consultation process designed to narrow the scope of the request sufficiently for it to be accommodated. The details of that regime are as follows:
(24AB) What is a request consultation process?
Scope
(1) This section sets out what is a request consultation process for the purposes of section 24.
Requirement to notify
(2) The agency or Minister must give the applicant a written notice stating the following:
(a) an intention to refuse access to a document in accordance with a request;
(b) the practical refusal reason;
(c) the name of an officer of the agency or member of staff of the Minister (the contact person ) with whom the applicant may consult during a period;
(d) details of how the applicant may contact the contact person;
(e) that the period (the consultation period ) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
Assistance to revise request
(3) If the applicant contacts the contact person during the consultation period in accordance with the notice, the agency or Minister must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
(4) For the purposes of subsection (3), reasonable steps includes the following:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the request.
Extension of consultation period
(5) The contact person may, with the applicant's agreement, extend the consultation period by written notice to the applicant.
Outcome of request consultation process
(6) The applicant must, before the end of the consultation period, do one of the following, by written notice to the agency or Minister:
(a) withdraw the request;
(b) make a revised request;
(c) indicate that the applicant does not wish to revise the request.
(7) The request is taken to have been withdrawn under subsection (6) at the end of the consultation period if:
(a) the applicant does not consult the contact person during the consultation period in accordance with the notice; or
(b) the applicant does not do one of the things mentioned in subsection (6) before the end of the consultation period.
Consultation period to be disregarded in calculating processing period
(8) The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b).
Note Paragraph 15(5)(b) requires that an agency or Minister take all reasonable steps to notify an applicant of a decision on the applicant's request within 30 days after the request is made.
No more than one request consultation process required
(9) To avoid doubt, this section only obliges the agency or Minister to undertake a request consultation process once for any particular request.
As has been noted, not all documents held by government or its agencies are available under the Act. Several classes of documents are protected or “exempt” from disclosure. There are several categories of documents where this is hardly unexpected – for example those dealing with Cabinet documents, documents touching on national security, international relations or the investigation of crimes. Even so, some of those documents may be made available under special circumstances. Comprehensive details of these exemptions and their management are not relevant to this application.
However certain exemption provisions are potentially relevant, as follows:
(38) Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
b) either:
(i) that provision is specified in Schedule 3; or
(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.
(2) Subject to subsection (3), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.
(3) This section applies in relation to a document so far as it contains personal information about a person if:
(a) the person requests access to the document; and
(b) disclosure of the document, or information contained in the document, is prohibited under section 503A of the Migration Act 1958 as affected by section 503D of that Act.
(4) In this section:
"enactment" includes a Norfolk Island enactment.
(45) Documents containing material obtained in confidence
(1) A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
(2) Subsection (1) does not apply to a document to which subsection 47C(1) (deliberative processes) applies (or would apply, but for subsection 47C(2) or (3)), that is prepared by a Minister, a member of the staff of a Minister, or an officer or employee of an agency, in the course of his or her duties, or by a prescribed authority or Norfolk Island authority in the performance of its functions, for purposes relating to the affairs of an agency or a Department of State unless the disclosure of the document would constitute a breach of confidence owed to a person or body other than:
(a) a person in the capacity of Minister, member of the staff of a Minister or officer of an agency; or
(b) an agency or the Commonwealth.
(47G) Public interest conditional exemptions--business
(1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or
(b) could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.
(2) Subsection (1) does not apply to trade secrets or other information to which section 47 applies.
(3) Subsection (1) does not have effect in relation to a request by a person for access to a document:
(a) by reason only of the inclusion in the document of information concerning that person in respect of his or her business or professional affairs; or
(b) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an undertaking where the person making the request is the proprietor of the undertaking or a person acting on behalf of the proprietor; or
(c) by reason only of the inclusion in the document of information concerning the business, commercial or financial affairs of an organisation where the person making the request is the organisation or a person acting on behalf of the organisation.
(4) A reference in this section to an undertaking includes a reference to an undertaking that is carried on by:
(a) the Commonwealth or a State; or
(b) an authority of the Commonwealth or of a State; or
(c) a Norfolk Island authority; or
(d) a local government authority.
(5) For the purposes of subsection (1), information is not taken to concern a person in respect of the person's professional affairs merely because it is information concerning the person's status as a member of a profession.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Where a decision to refuse access (in whole or in part) has been made, the Act provides that the applicant may seek to have that decision reviewed by the Australian Information Commissioner:
(54L) IC reviewable decisions--access refusal decisions
(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2) This subsection covers the following decisions:
(a) an access refusal decision;
(b) a decision made by an agency on internal review of an access refusal decision (see section 54C);
(c) a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B).
Note 1: An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardless of whether the decision was the subject of internal review.
Note 2: If no decision is made on internal review within 30 days, a decision to affirm the original access refusal decision is taken to have been made (see section 54D).
(3) The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates.
Further sections in Part VII Division 3 of the Act specify the manner of making such review applications and the procedures for their determination.
Section 55 of the Act sets out a series of steps which either must be taken by, or are available to, the Information Commissioner[8] once an appeal for review has been lodged. This process is called the “Information Commissioner Review” (”IC Review”).
[8] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioners under s 93A of the Freedom of Information Act 1982 (combined May 2018) chapter 10.
It is designed to bring about a facilitated resolution between the parties by way of agreement prior to reaching the stage of a full hearing and determination. Under these provisions, the parties may (or may be encouraged to) reach an agreement to so alter the initial request that it becomes acceptable to the respondent. In these proceedings the office of the Information Commissioner may play a facilitative role and attempt to help the parties to resolve any of the outstanding issues on which they have disagreed previously.
If any matter proceeds to a full hearing before the Information Commissioner and a decisions is made, then any such decision is, in turn, subject to further review under the general review provisions of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”) which is the route by which the Applicant’s original application made on 21 October 2016, now comes before this Tribunal.
Such a review by this Tribunal is a de novo review, conducted on the basis of the material before the Tribunal at the time of its decision-making, including any material which may not have been before the original decision-maker.
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[9]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[10]
III: THE REQUESTED MATERIAL
[9] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].
[10] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Background
Before discussing the details of the material requested it is necessary to outline, albeit with utmost brevity some relevant background information.[11]
[11] Applicant’s Statement of Facts, Issues and Contentions T3 pages [82]-[92].
The applicant submitted that an audit conducted in 2003, which resulted in the issue of a challenged assessment, concerned the unwinding of an agreement made between a company (to be referred to as “Company X”), and the Western Australian Government, pursuant to which Company X was to supply a car fleet under a financing transaction
However, although this background information provides a context for the initial request which was made, the Tribunal must stress again that under the Act, the motivation for any applicant seeking information cannot ever be taken as a relevant consideration in any decision-making about the granting or withholding of access.
Access applications
The further narrative of these taxation proceedings does not concern this Tribunal; however, in order to respond to various assessments and any proposed penalties arising from these taxation audits, the Applicant has sought access to various documents relied upon by the ATO in making their decisions.
On at least three previous occasions the Applicant has been before this Tribunal seeking access to such documents under provisions of both the AAT Act and various pieces of taxation legislation, primarily the Taxation Administration Act 1953.
In the first instance the Tribunal found that the documents sought were not “relevant to the issues agreed the parties”[12] and dismissed the application for access to them. An application for a stay of the ATO’s decision was dismissed by the Tribunal.[13] However in August 2018 the Tribunal (differently constituted from that in 2017) held that certain documents should be provided to the Tribunal as part of its proceedings.[14]
[12] VMQD and Commissioner of Taxation (Taxation) [2017] AATA 846 at [26] per Deputy President Cowdroy.
[13] VMQD and Commissioner of Taxation (Taxation) [2017] AATA 1430 per Deputy President Cowdroy.
[14] VMQD and Commissioner of Taxation (Taxation) [2018] AATA 3147 per Senior Member Taylor.
The decisions of the previous Tribunals are not relevant to this application but have been referred to simply to establish that there has been a long record on the part of the Applicant of seeking to obtain access to documents held by the ATO which the Applicant regards as necessary for him to respond adequately to an ATO assessment.
Subject matter of the request
Without going into a detailed or highly specific description of the material requested by the Applicant, the request can be characterised as having three separate but clearly related components. Broadly these are:
(i)“2003 Review” relating to material held relevant to the termination of the leasing arrangements and ATO assessments arising therefrom;
(ii)“2013 Review” relating to audit of the Applicant’s personal tax affairs, including material relevant to the preparation of the ATO’s Reasons for Decision and the delay in commencing the audit following the 2003 review;
(iii)Material relating to the issuing of assessment and penalty decisions to the Company X (in liquidation).[15]
[15] Applicant’s Tender Bundle, Tab 25.
It is not necessary for the Tribunal to go into further detail about the specification of precisely what documents are identified in each of these categories, except to the extent that this is discussed below.
Initial assessments
After receiving the Applicant’s initial request on 21 October 2016, the ATO made an initial assessment of the work that would be required to meet the request in full. Its assessment was that the request involved:
·Searching through 14 to 19 large folders of documents containing between 5,600 and 7,600 individual items
·Undertaking “numerous consultations” with a range of third parties including “State and foreign “ governments
·Ultimately leading to a commitment of “380 staff hours or more than 63 staff days for ATO officers to process” the request.
On this basis, the ATO notified the Applicant on 7 November 2016 that it was considering a refusal off the request under section 24AA of the Act.[16]
[16] Section 37 – T Documents at [48]-[50].
The consultation process
As explained above, where an agency is initially of the opinion that dealing with a request would impose undue burdens upon it the Act provides a mechanism whereby the parties can enter into discussions with a view to perhaps refining or reducing the initial request to make it manageable.
This process commenced and is outlined below:
·On 14 November 2016 the Applicant responded to the 7 November 2016 notification in which it both indicated some reduction in the scope of the request but sought more information by way of a description of the 14 to 19 folders mentioned in the notification
·On 17 November 2016 the ATO responded, on this occasion indicating that there were now 50 folders under potential consideration involving approximately 18,000 pages. Despite this exponential increase in the number of pages (from 5,600/7,600 to 18,000) the ATO still maintained that the processing time was 380 hours/63 staff days.[17] The Applicant was given 14 days to respond to an invitation for further modification of the request.
[17] Ibid at [54]-[56].
·On 22 November 2016 the Applicant responded by seeking further information and an extension of the specified consultation period of 14 days.
·On the same day the ATO responded, by email, to the effect that its previous letter “contains all the relevant information we can provide you in the circumstances without engaging numerous staff and using ATO resources” and that the 14 day time frame commenced that day.[18]
[18] Ibid at [61].
·The Applicant replied on 23 November 2016 again seeking further information in order to assist in any potential narrowing of the request.[19]
[19] Ibid at [63]-[65].
·By email on 29 November 2016 the ATO made a further request asking if the Applicant were proposing to reduce the scope of the request and extending the deadline (to a time unspecified).[20]
[20] Applicant’s Tender Bundle at Tab 12.
·On 29 November 2016 the Applicant responded agreeing to exclude certain documents and attaching some further information relating to documents already excluded as a result of AAT proceedings.[21]
[21] Section 37 – T Documents at [66]-[67].
oThe Tribunal notes that in this letter from the Applicant it is asserted that the consultation period was due to conclude on 6 December 2016 whereas in his Decision in this matter the Information Commissioner states that the consultation period expired on 29 November 2016 in accordance with sections 24AAB(8) and 24AAB(2) of the Act.[22]
·On 6 December 2016 the Applicant (via his solicitors) wrote to the ATO in the following terms:
“Our client is unable to consider further revisions to his request, as he has not received the information he requested, or been able to consult with the ATO on strategies to revise the request. To avoid any argument that there will be a deemed withdrawal of his request later today when the consultation period ends, he herby gives the ATO notice that he does not wish to make further revisions to the request in accordance with s 24AB(6)(c).Although required by the Act, the notification does little to resolve the present impasse. It appears to us that the only productive course now is for the ATO to make a decision and allow the matter to be independently reviewed through the appeal process contemplated by the Act.”[23]
·On 15 December the ATO made a final decision to refuse the Applicant’s request under section 24 of the Act stating:
“I am refusing your request under s 24 of the FOI Act on the grounds that we have undertaken the necessary consultation process and I believe that the resources required to process your amended request would substantially land (sic) unreasonably divert the resources of the ATO form (sic) its other operations.”[24]
[22] OM and Australian Taxation Office (Freedom of Information) [2018] AICmr 41 at [11].
[23] Section 37 – T Documents at [75]-[76].
[24] Ibid at [77]-[80].
The appeal process
The Applicant exercised his right of appeal against the decision of the ATO and on 21 February 2017 an application was lodged with the Australian Information Commissioner for review of the decision.
The Information Commissioner gave his decision on 21 March 2018 upholding the ATO’s refusal of access on the grounds which they asserted.[25]
[25] OM and Australian Taxation Office (Freedom of Information) [2018] AICmr 41.
In further pursuit of his statutory rights, the Applicant lodged an application to review the decision made by the Information Commissioner with this Tribunal.
The quantum of material
The Tribunal has given a brief outline of the material sought and this is more fully detailed in the ATO’s letter of 15 December 2016.
In that letter the ATO states, in relation to the request as it was before them for determination, after the consultation period that it comprises:
(i)Over 50 folders comprising over 18,000 pages and that
(ii)This would require over 300 staff hours to process.[26]
[26] Section 37 – T Documents at [79].
The Tribunal notes that, at no stage, and in no documentation or oral evidence to the Tribunal has the Applicant sought to challenge or question this assessment of the quantum of material as asserted by the ATO.
However the ATO figures themselves are problematic as will be explained below.
Processing times
If the ATO is to succeed in its claim for an exemption on the grounds of unreasonable burden, the onus lies upon it to demonstrate what that burden might be in terms of resources.
The Tribunal has before it more than one estimate in this regard:
(a)“380 hours, or approximately 63 staff days”: this estimate was given in the ATO’s correspondence of 7 November 2016 over the signature of Anne-Marie Scott, the ATO General Counsel related to 14 to 19 folders comprising 5,600 to 7,600 pages;[27]
(b)“380 staff hours at minimum and more than 63 staff days”: given on 17 November 2016 but now related to “over 50 folders” and “approximately 18,000” pages – again over the signature of Anne-Marie Scott[28]
(c)“80 hours”: given as an estimate to the Information Commissioner in his proceedings, equating to 28.80 seconds per page based on the ATO’s submission that there were “at least 10,000 pages” in issue[29]
(d)“406 hours”: given as an estimate in the affidavit of Ms Krisstine Nash, who is the part of the Review and Disputes Resolution Team of the ATO. Ms Nash refers to this as a conservative estimate and infers that additional time would be needed to inspect or scan other documents.[30]
[27] Ibid at [48]-[50].
[28] Ibid at [54]-[56].
[29] OM and Australian Taxation Office (Freedom of Information) [2018] AICmr 41 at [45].
[30] Affidavit of Ms Krisstine Nash (25 October 2018) attached to Respondent’s Statement of Facts, Issues and Contentions.
It is very difficult to take these estimates as other than indicative. It hardly speaks to the ATO’s capacity to make such estimates for the Tribunal to be informed that it will take exactly the same time (380 hours/ 63 staff days) to process 18,000 items as it would to process 5,600-7,600 items.
Ms Nash’s evidence which was both in the form of affidavit and in oral evidence was questioned at length by the Applicant. Ms Nash is not an expert in FOI matters, and freely admitted her unfamiliarity with the FOI Act. She was, apparently, asked to undertake this exercise because of her familiarity with some of the material in the files being requested, having been involved in other matters related to the Applicant, although not those in immediate question. Nevertheless, I believe that she went about her task conscientiously and after consultation with other officers of the ATO.
The Tribunal has examined Ms Nash’s estimates which are presented in terms of four separate parts.
(1) Apparently there are 12 identified folders related to the 2013 Audit. Ten of these relate to correspondence between the ATO and the Applicant or his representatives. The Tribunal will refer to these as the party/party folders. Two contain correspondence with third parties:
(a) In relation to the 10 party/party correspondence, Ms Nash estimates a processing time of some 20 hours. At 400 pages per folder this amounts to processing 4000 pages at a rate of about 3.3 minutes per page;
(b) In relation to the 2 external correspondence folders Ms Nash estimates a processing time of 66 hours and 40 minutes at 5 minutes per page. This is equivalent to 800 pages of documentation.
(2) In the third category are 15 folders of documents related to the 2003 Company X review which, at 400 pages per folder, amounts to 6,000 pages. Her estimate of processing time for this is at the rate of 2 minutes per page or some 200 hours.
(3) Ms Nash states directly that fourth category comprises some 9 folders related to the Company X assessment matters, amounting to some 3,600 pages. Reviewing these documents at 2 minutes per page would amount to 120 hours of work.
It is clear that her estimate of 406 hours is based on these calculations about which the Tribunal will have more to say.
However her calculations mean that the quantum of material under review now comprises some 36 folders (x400) or 14,600 pages and not the 18,000 previously stated.
The Tribunal thus has advice from the ATO that the quantum of material may be in the order of 5,600 to 7,600 items or it may be 14,600 items or it may be 18,000 items.
It appears that the most comprehensive analysis of this material is that undertaken by Ms Nash and while her estimates of time are not regarded as entirely reliable by the Tribunal (see below) it is prepared to accept that the quantum of material in question is in the vicinity of 14,600 individual documents or pages.
As Ms Nash has rightly pointed out, different categories of documents require different processing times. For the most simple items she has used a calculation of 2 minutes per page for assessment.
In Gurjit Singh the Information Commissioner accepted that “2 minutes per page represents a reasonable estimate of the time it will take the Department to assess and edit each page.”[31]
[31] Gurjit Singh and Attorney-General’s Department [2015] AICmr 20 at [42].
In the case of FF the Information Commissioner accepted 2 minutes as a reasonable time to review “complex material” and as little as 30 seconds to review other items.[32]
[32] FF and Australian Taxation Office [2015] AICmr 25 at [5].
In Wright the Information Commissioner did not dispute the Department’s estimation that dealing with most material would take 3 minutes per page although the Information Commissioner was sceptical of some of the Department’s classification of the complexity of documents.[33]
[33] Adrian Wright and Department of Human Services (Freedom of Information) [2017) AICmr 127 at [47].
However the Tribunal notes that in its initial responses, the ATO made calculations based on taking only one minute per page to assess its initial 18,000 estimated items.[34]
[34] Section 37 – T Documents at [79] and [124].
Ms Nash also used a calculation of 5 minutes per page for complex documents, and again this is supported by the decision of the Information Commissioner in EU where the Commissioner held this calculation to be “reasonable”.[35]
[35] EU and Department of Human Services [2015) AICmr 15 at [52].
There is, unfortunately, no guidance to be derived from the Information Commissioner’s FOI Guidelines which, while helpful in analysis what constitutes an unreasonable burden on agencies, does not definitively specify anything about what constitutes reasonable times for the examination of individual documents.[36]
[36] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioners under s 93A of the Freedom of Information Act 1982 (combined May 2018).
The Tribunal accepts that Guidelines are just that, they are not binding, definitive or determinative. While they may, in the words of Deputy President Forgie “have no role to play in the interpretation of the FOI Act”[37] they nevertheless assist in helping the Tribunal to deal with matters which cannot be resolved by direct reference to the terms of the Act itself.
[37] Re Prinn and Department of Defence [2016] AATA 445 at [49].
The Tribunal notes that in Ms Nash’s estimates there is no inclusion of any time for external consultations, including those with “state and foreign governments” which had been referred to in its earlier refusal decision. No evidence was placed before the Tribunal which referred to any requirements for third-party consultations and hence no time estimates were proffered in this regard. The Tribunal takes this as a matter no longer being pressed by the Respondent and, as a result, has not included any time for eternal consultations in its own further reckoning of the time or resources involved.
The complexity issue
Throughout its submissions, the ATO has maintained that not all the documents in question are simple documents easily capable of assessment for potential release. In particular it has raised questions about material related to the “Company X material” which, it asserts may call into operation the exemption provisions of s. 38 of the Act (as set out above).
The ATO’s position in relation to some of these documents is as follows:
“These documents relate to a third party corporation now in liquidation. VMQD is no longer a director of this corporation, and the ATO does not consider that an exception to the general prohibition on sharing taxation information with other entities in s 355-25 of the Schedule to the Taxation Administration Act 1953 applies so a considerable amount of this material will be exempt under s. 38 of the FOI Act.”[38]
[38] Respondent’s Statement of Facts, Issues and Contentions at [39.2].
Generally section 355-25 under schedule 1 of the Taxation Administration Act 1953 provides:
355-25 Offence--disclosure of protected information by taxation officers
(1) An entity commits an offence if:
(a) the entity is or was a * taxation officer; and
(b) the entity:
(i) makes a record of information; or
(ii) discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
(c) the information is * protected information; and
(d) the information was acquired by the first-mentioned entity as a taxation officer.
Penalty: Imprisonment for 2 years.
This section is supplemented by the provisions of s 355-50 which provides a table of disclosures which are permitted notwithstanding the prohibitions in s 355-25.
There was considerable argument before the Tribunal as to the extent to which these sections might be applicable in this application. In particular the attention of the Tribunal was drawn to the decision of the Federal Court to the effect that
“Div 355…should not be allowed to operate to shield the disclosure of “protected information” contained in documents required to be produced in proceeding, where the “protected information” relates to a non-party individual who is the directing mind and will of a corporate party; at least where the non-party individual consents to the disclosure of the “protected information.””[39]
[39] 12 Years Juice Foods Australia Pty Ltd v Commissioner of Taxation [2015] FCA 741 at [66].
While the Tribunal understands the Applicant’s desire not to see section 355 used to frustrate their access to information they consider of vital interest, the strictures in the Federal Court case just cited do not, as far as this Tribunal is concerned, touch upon the access provisions under the FOI Act in the way in which they might in the nature of proceedings then being consider by that Court.
The position of the ATO was that even if disclosure were possible, it was still necessary for relevant documents to be examined to establish that eligibility and that failure to do so could result in significant penalties for officers of the ATO should the material be released improperly.
The position of the Applicant was that the Applicant had a genuine need for access to material which the ATO relied upon in making assessments of his own personal taxation liabilities and that the exemptions in s 355-50 applied in his case.[40]
[40] Letter of Applicant’s solicitors addressed to Office of the Information Commissioner dated 17 October 2017 in Applicant’s Tender bundle at Tab 20.
It is not for the Tribunal to prejudge this matter.
However the Tribunal finds itself in sympathy with the ATO in terms of their officers needing to exercise some degree of care and caution about releasing material without due consideration of the fact that it might be covered by other taxation legislation secrecy provisions.
In any event, were the ATO to refuse access on the basis of a section 38 exemption, that decision would be open to review and challenge in the appropriate fashion. The same might be said in relation to possible exemptions claimed under sections 45 and 47G of the Act (see above) which have also been raised as possibilities in the ATO’s submissions.[41]
[41] Respondent’s Statement of Facts, Issues and Contentions at [39.3].
Common sense might dictate that the solution to this dilemma would be to split the FOI request into its component parts and deal with the “Company X material” separately. Unfortunately this is not possible under the Act. Section 24(2) of the Act provides for the combining or aggregation of requests into a single application. Indeed the Information Commissioner has made it clear in several decisions that the Act
“… does not allow an agency to process a single FOI request by refusing some documents on the basis of practical refusal, then processing the remaining documents. Section 24(2) of the FOI Act provides that an agency may treat two or more requests that relate to the same documents or subject matter as a single request in deciding if a practical refusal reason exists. There is no provision in the FOI Act with the reverse effect: one allowing an agency to consider one FOI request as two separate requests.”[42]
[42] Fist and Australian Broadcasting Corporation [2014] AICmr 14 at [10]. See also AR and Australian Federal Police [2013] AICmr 80 at [28].
Calculating the requirements
Out of this morass of contradictory estimates it falls to the Tribunal to try to assess what might be the actual time requirements placed upon the ATO.
Although 2 minutes per page might be more than entirely necessary in relation to what the Tribunal has described as the party/party folders, especially if these were examined by both parties being present so that the Applicant could identify material already in its possession, even a reduction to 1 minute would only take 10 hours off the final total.
The 5 minutes for every page in the external correspondence folder may also be overly conservative. Again, were only 50% of the material to require such scrutiny and the remainder be examined at the 2 minute rate, that would be over 46 hours and only amount to a saving of 20 hours.
The Tribunal accepts that the two sets of Company X material are likely to be both complex to review and requiring additional scrutiny for secrecy compliance purposes, therefore two minutes per page is not unreasonable.
The Tribunal is thus left in a position that given the best-case scenario that can be envisaged in terms of trying to assist the Applicant with a speeding up of the process, while ensuring that proper procedures and requirements are followed, it has to accept that processing the identified material would require the commitment of at least 375 hours.
The Tribunal notes (and has referenced above) a more recent suggestion from the Applicant, that in relation to the 10 party/party folders it would be prepared to subject these to some form of physical inspection by the Applicant’s solicitors to identify documents not already in their possession.[43]
[43] Applicant’s Statement of Facts, Issues and Contentions at [4(b)].
It further notes that the Applicant has refined some of its request in relation to the 2003 review and Company X Assessment requests: its response to the ATO’s offer to provide indices of the relevant files is that it is not, in and of itself, sufficient unless such indices are in a particular form. To this the ATO responds that creating indices in such a fashion would require it to identify documents with the precision which constitutes the very basis for its refusal to grant access on practical refusal grounds.
The Tribunal must deal with matters as are before it at the point of decision,[44] and so both the Applicant’s new offer and the ATO’s response have to be given due consideration.
[44] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.; AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
The Tribunal does not find the Applicant’s new proposal to be in effect a meaningful one. The request made to the ATO would, as the ATO points out, involve it in doing the very work which is in issue in these proceedings and the offer of visual inspection of the files would, in the opinion of the Tribunal neither resolve all the matters in question, nor significantly reduce the time commitments required.
What is a practical refusal?
In the case of an agency such as the ATO, section 24AA(1)(a)(i) of the Act provides that a “practical refusal reason” exists if the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.
The process of this decision making involves several steps as spelt out in Langer.[45] In the first instance the agency must make an assessment of the amount of work involved. Two things should be said of this. The first is that the Tribunal in its merits-review capacity is not bound to accept the calculations of the agency if it has grounds for thinking them unsubstantiated.[46] The second is that the number of hours involved is not, on its own, sufficient to establish that a practical refusal reason has been established.[47]
[45] Re Langer and Telstra Corporation Ltd [2002] 68 ALD 762 at [111]-[115].
[46] Aloysia Brooks and Department of the Prime Minister and Cabinet [2015] AICmr 66 at [21]; Paul Farrell and Prime Minister of Australia [2017] AICmr 44 at [26]; Dreyfus v Attorney-General [2015] AATA 995 at [51] per Jagot J.
[47] FX and Department of Prime Minister and Cabinet [2015] AICmr 39 at [34]; JC and Department of Health [2016] AICmr 47 at [33].
Secondly, the diversion of resources must be both “substantial” and “unreasonable”. According to the Information Commissioner’s FOI Guidelines
“There may be circumstances where the processing of an applicant’s request would have a substantial effect on the agency or minister… but may not necessarily be unreasonable in the circumstances.”[48]
[48] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioners under s 93A of the Freedom of Information Act 1982 (combined May 2018) at [3.112].
For instance, a very large and well-resourced agency may find it much less burdensome to deal with a request than a smaller agency, especially if it has resources such as a dedicated FOI branch or unit.[49]
[49] AP and Department of Human Services [2013] AICmr 78 at [54].
By contrast, in small agencies it has been accepted that consideration should be given to the availability “of the resources likely to be necessary in order to comply.”[50] As the New South Wales Administrative Decisions Tribunal said in Cainfrano relevant factors include
“whether the request is a reasonably manageable one given due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications”.[51]
[50] Tate and Director, Australian War Memorial [2015] AATA 107 at [45].
[51] Cainfrano v Director General, Premier’s Department [2006] NSWADT 137 at [62].
Similarly, in Western Australia decisions have been made that times calculated as being as little as 30 hours, or indeed even 14 hours could be considered as unreasonable when directed at small agencies.[52]
[52] Christopher Ballam and Shire of Toodyay, Re [2009] WAICmr 4 and Cunningham and Rural Adjustment and Finance Corporation, Re [1996] WAICmr 29 respectively.
The ATO is of course, a large and well-resourced agency and cannot claim that it lacks capacity, nevertheless the Act is based upon it being able to deploy its resources efficiently in pursuit of its principal statutory objectives and obligations.
In Langer, AAT Deputy President Forgie provided further guidance when she stated that:
“It is inherent in the ordinary meaning of the word ‘unreasonable’ that all relevant considerations must be weighed… It is also relevant to have regard to information that is available to an applicant through other means.”[53]
Further
“… it seems to me that the work involved in processing a request will only substantially and unreasonably divert the resources of an agency if the work is real or of substance and not insubstantial or nominal and if it is unreasonable having regard to factors, such as workload….”[54]
[53] Re Langer and Telstra Corporation Ltd [2002] 68 ALD 762 at [113]. Citations omitted.
[54] Ibid at [115].
Following the steps outlined in Langer, the Tribunal has already noted the degree to which the ATO has made an assessment of the work in term of identification of the quantum of material involved and that the Applicant has not, in any material way, sought to contradict their assessment of that quantum. As the Tribunal said in Tate:
When considering the nature and extent of resources necessary to deal with an FOI request it is appropriate for an assessment to be made on what is estimated to be the amount and extent of work involved in compliance with the request for information but it is not necessary when considering the exercise of power to refuse the request under section 24 to consider in detail the contents of all documents comprised in a wide ranging and generalised request such as the present one. The process is one which requires a consideration of the resources likely to be necessary in order to comply.[55]
[55] Tate v Director, Australian War Memorial [2015] AATA 107 at [45].
There are several instances where the matter of hours involved have been addressed.
In the first instance it should be noted that the Information Commissioner has, when thought appropriate, set aside the time calculations made by the Agency and substituted its own calculations in place thereof. For example in AP the Information Commissioner re-determined the time required from the agency’s assessment of 99 hours down to its own assessment of 14 hours, and on this basis rejected the agency’s claim for refusal of the request on section 24AB grounds.[56]
[56] AP and Department of Human Services [2013] AICmr 78.
Similarly, the Information Commissioner has not been averse to determining that time claims made by agencies have been exaggerated and unsubstantiated. In Dreyfus the Information Commissioner rejected claims that processing a request would take between 228 and 630 hours and refused to accept the basis upon which the calculations had been made.[57]
[57] Dreyfus v Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 at [39].
On numerous other occasions the Information Commissioner has made findings that claims by agencies for practical refusals of requests could not be sustained. These cases involved claims which involved only minimal resource diversion on the part of agencies,[58] or, where more time was required, the burden was not regarded as unreasonable.[59]
[58] KT and Department of Foreign Affairs and Trade [2017] AICmr 15.
[59] MZ and Department of Communications and the Arts [2017] AICmr 109.
In a report to Government, not acted upon, the Information Commissioner recommended that a period of 40 hours be adopted as a statutory ceiling on processing time that could be relied upon by agencies in place of the practical refusal mechanisms of s 24AA.[60]
Ceiling on processing time: an agency should not be required to process a request that is estimated to take more than 40 hours. The agency must consult with the applicant before making that decision. This ceiling will replace the practical refusal mechanism in ss 24, 24AA and 24AB. An agency decision to impose a 40 hour ceiling would not be IC reviewable, though the agency’s 40 hour estimate would be reviewable.
[60] Information Commissioner: Report to the Attorney General: Review of Charges under the Freedom of Information Act 1982 (2011), Recommendation 4 at page [7].
A more detailed analysis of time limits and their calculation in relation to practical refusal matters is set out in the Information Commissioner’s decision in Davies.[61]
[61] Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 at [23]-[28].
In Wright the Information Commissioner found that a request to the Department of Human Services (a large and well-resourced department) which involved a “minimum of 86 hours to process”[62] constituted sufficient of a burden and diversion of resources as to sustain the Department’s claim for a practical refusal of the request. It should be noted that the calculation of 86 hours was made by the Information Commissioner himself after rejecting the Department’s “overestimate” of 284 hours.[63]
[62] Adrian Wright and Department of Human Services (Freedom of Information) [2017] AICmr 127 at [64].
[63] Ibid at [66] and [31].
Similar findings upholding practical refusal claims were made in:
·Tate (against Australian War Memorial, a small agency, 1003 pages, 150 hours);[64]
·FF (against ATO, a large agency, 6500 pages, 94 hours);[65]
·Singh (against Attorney-General’s Department, a medium sized agency, 1800 pages, 74 hours);[66]
·NX (against the Australian Trade and Investments Commission, small agency, 174 documents, 63 hours);[67]
·NJ (against Department of Home Affairs, a large agency, 1056 documents, 159 hours); and[68]
·Cainfrano (against the NSW Premier’s Department, a small agency, 11,400 pages, 229 hours).[69]
[64] Tate v Director, Australian War Memorial [2015] AATA 107.
[65] FF and Australian Taxation Office [2015] AICmr 25.
[66] Gurjit Singh and Attorney-General’s Department [2015] AICmr 20.
[67] NX and Australian Trade and Investments Commisssion [2018] AICmr 18.
[68] NJ and Department of Home Affairs [2018] AICmr 12.
[69] Cainfrano v Director General, Premier’s Department [2006] NSWADT 137.
Equally, the concept of what is “substantial and unreasonable” under the provisions of section 24AA “admits of no ready or precise measure”[70]. Indeed, the Information Commissioner has made it clear that, “It is not possible to specify an indicative number of hours of processing time that would constitute a practical refusal reason.”[71]
[70] Ibid at [44].
[71] NX and Australian Trade and Investments Commission [2018] AICmr 18 at [28].
Perhaps even more to the point, in terms of the difficulty of establishing a truly objective test is the comment in Tillmanns Butchery where a full bench of the Federal Court stated:
“The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.”[72]
[72] Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees Union and Ors [1979] 27 ALR 367 at [382] per Bowen CJ, Evatt and Deane JJ.
The Information Commissioner has noted in relation to the other element of the test that, “whether or not disclosure would be “unreasonable” is a question of fact and degree which calls for a balancing of all the legitimate interests involved.”[73]
[73] Dreyfus v Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 at [43].
What constitutes valid practical refusal grounds is thus agency specific and resource dependent. Nevertheless for any agency, a burden in excess of 200 hours would almost certainly make the threshold of a rational and objective test. As is illustrated above, burdens as (relatively) small as 74 hours have been so characterised.
An important point was made in SRB[74] where the Tribunal stated:
34. The judicial process of determining the existence of an unreasonable situation was discussed by Wilcox J in Prasad v Minister for Immigration [1985] FCA 47; 65 ALR 549 at 561. In administrative review it is not necessary to show (as was pointed out in Prasad) that the extent of the unreasonableness is overwhelming. It is this Tribunal's task to weigh up the considerations for and against the situation and to form a balanced judgment of reasonableness, based on objective evidence.
[74] SRB and SRC and Department of Health, Housing, Local Government and Community Services [1994] AATA 79.
The clear responsibility of this Tribunal is to assess the claims made by the ATO based on the objective material before it and make a balanced judgement whether or not the potential burden meets to section 24AA(1)(a)(i) threshold – not whether the burden is “overwhelming” but that it is “substantial and unreasonable.”
There is always a need for this balance to be struck between burdens of agencies and the underlying philosophy of the Act which is to make as much material available as possible and to recognise that:
“The FOI Act creates a right to access to information in the possession of government. A decision to refuse access…… is not one that can be made lightly, given the stated objects of the Act.”[75]
IV: CONSIDERATIONS
[75] QVFT and Secretary, Department of Immigration and Citizenship [2012] AATA 501 at [21].
Further scope to refine
It is expected that parties co-operate to attempt to narrow voluminous and unmanageable requests so that they can be accommodated within the resources of agencies, coming back to the questions of balance.
In a case dealing with the issue of unreasonably large requests, the Information Commissioner of Western Australia commented:
31. Section 20 is designed to ensure that the operations of government agencies are not unduly impeded by agencies having to deal with unreasonably voluminous access applications. It is one of a number of provisions aimed at striking a balance between, on the one hand, the public interest in open and accountable government and, on the other hand, the public interest in the ongoing effective operation of agencies.
……..
36. While section 20 of the FOI Act places agencies under a duty to assist applicants, I consider that there must be a corresponding obligation upon applicants to work cooperatively with an agency and an element of reasonableness must be implied in the process, if the legislation is to work satisfactorily. In Cainfrano v Director General, Premier's Department [2006] NSWADT 137, President O’Connor of the Administrative Decisions Tribunal of New South Wales reviewed a decision by an agency to refuse to deal with an FOI application under the equivalent to section 20 in the Freedom of Information Act 1989 (NSW). In examining the factors relevant to an assessment of the kind required in that case, President O’Connor considered that whether the applicant has taken a co-operative approach in redrawing the boundaries of an application is a relevant factor. I agree with that view.[76]
[76] Park and SMHS – Royal Perth Hospital [2014] WAICmr 18.
Section 24AB of the Act formalises the processes through which attempts to reduce the scope of large requests should be managed. It is a process which must be undertaken by the parties, and implicitly, undertaken co-operatively and in good faith.
In the Information Commissioner’s decision, here appealed, he was satisfied that an adequate process had been followed and completed.[77] This is contested by the Applicant.
[77] OM and Australian Taxation Office (Freedom of Information) [2018] AICmr 41 at [35].
There is no doubt that the ATO failed in a number of ways to follow the process to the letter of the law in the first instance, or indeed to follow their own commitments to the Applicant.
·It did not initially provide the Applicant with a full range of options about how the initial request could be revised
·It made an offer (by email dated 14 November 2016) to have “our business lines … clarify content of the folders and return to you asap”[78], but this did not appear to occur.[79]
[78] Section 37 – T Documents at [59].
[79] Ibid at [63]-[64], Applicant’s letter of 23 November 2016 and [66]-[67], Applicant’s letter of 29 November 2016.
These matters were in issue before the Information Commissioner during the Information Commissioner Review process during which process, the Information Commissioner was “satisfied that any procedural defect was rectified.”[80]
[80] “OM” and Australian Taxation Office (Freedom of Information) [2018] AICmr 41 at [35].
This is an important matter because the ATO was obliged under the Act to follow certain procedures and it appears that it did not. However the entire process of the IC Review is designed to address any such shortcomings on the part of any party and, to the extent that the Information Commissioner can remedy any defect, it has the capacity and responsibility to do so. In this instance the Information Commissioner was satisfied that rectification had taken place.
The Tribunal does not have access to any internal documents of the Information Commissioner’s office to allow it to follow the minutiae of any such proceedings, however, from the information which is contained in the documents which are before it, the Tribunal is satisfied, independently of the Information Commissioner’s position, that the ATO took sufficient reasonable steps “to assist the applicant to revise the request so that the practical refusal reason no longer exists” (section 24AB(3)).
Determining the final shape of the request
After consideration of all these matters the Tribunal is satisfied that the final scope of the request from the Applicant to the ATO consists of an application which
·involves the examination of some 36 folders covering somewhere in the order of 14,600 pages,
·involves documents of a significant variety of complexity, some of which are more than likely to be covered by secrecy provisions of taxation legislation, and
·would require somewhere in the order of 375 hours to process.
Does this provide a basis for a practical refusal?
Yes. The authorities examined above and the application of what might be regarded as a common sense appraisal of whether or not 375 hours constitutes a burden that would “substantially and unreasonably divert the resources of the agency from its other operations” (section 24AA(1)(a)) lead to the conclusion that the basis for a practical refusal of the request in its current form has been established and exists.
What are the consequences of this finding?
It was suggested by the ATO in its oral submission that the Tribunal, were it to find in the Respondent’s favour, might look at remitting the matter to the ATO so that it could make a further attempt to refine and reduce the scope of the request in consultation with the Applicant. This matter was not commented upon nor urged by the Applicant.
A review of all the correspondence and the various proceedings going back over a period of many years does not indicate to the Tribunal that this is likely to be a very productive course of action. The Applicant has been clear and firm in terms of the scope of its minimal requirements which it has in order to be satisfied and the ATO has indicated that it continues to regard this minimalist position as unacceptable.
It would be better were the matter determined more definitively.
V: DECISION
Given the conclusions of the Tribunal in relation to the time involved and the burden placed upon the Respondent, the decision under review is affirmed.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd]........................................
Associate
Dated: 17 December 2018
Date(s) of hearing: 20 November 2018 Counsel for the Applicant: Mr A Russoniello Solicitors for the Applicant: Ms M Balabandi, Speed and Stracey Lawyers Counsel for the Respondent: Mr J Davidson Solicitors for the Respondent: Ms C Bennett, Australian Government Solicitor
9
14
0