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Baljurda Comprehensive Consulting Pty Ltd and the Australian Agency for International Development [2011] AICmr 8 (18 November 2011)

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Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: Baljurda Comprehensive Consulting Pty Ltd
Respondent: Australian Agency for International Development
Decision date: 18 November 2011
Application number: MR11/00039
Catchwords: Freedom of information – Charges – Whether agency should exercise discretion to reduce or not impose charges – (CTH) Freedom of Information Act 1982 s 29(5)

 

Contents

 Summary

1. I set aside the decision of the Australian Agency for International Development (AusAID) of 4 March 2011 and substitute my decision, under s 29(4) of the Freedom of Information Act 1982 (the FOI Act), reducing the charge by 75%.

 Background

2. On 1 November 2010, Mr John Wood, a director of Baljurda Comprehensive Consulting Pty Ltd (Baljurda) submitted an FOI request to the Australian Agency for International Development (AusAID).

3. The Regional Assistance Mission to Solomon Islands (RAMSI) is a partnership between the Government of the Solomon Islands and 15 contributing countries. As the RAMSI web site explains:

RAMSI is helping the Solomon Islands to lay the foundations for long-term stability, security and prosperity—through support for improved law, justice and security; for more effective, accountable and democratic government; for stronger, broad-based economic growth; and for enhanced service delivery.[1]

4. Australia is the primary contributor to RAMSI,[2] and Australia's RAMSI contributions are an estimated $63 m of a total of $225.6 m of official development assistance provided by Australia to Solomon Islands annually.[3]

5. In his request, Mr Wood sought access to six named documents concerning RAMSI and accountability mechanisms and corruption in the Solomon Islands. These documents are dated between 2006 and 2010. One of the documents sought was apparently written by Mr Wood himself.

6. On 10 December 2010, AusAID provided Mr Wood with a preliminary assessment of charges of $869.50. On 15 December 2010, Mr Wood asked for the decision on charges to be reviewed, contending that charges should be reduced, under s 29(4) of the FOI Act, on the basis that release of the documents would be in the public interest.

7. On 24 January 2011, AusAID advised Mr Wood that it had decided not to reduce the charges. Mr Wood sought internal review of this decision on 31 January 2011, and provided further arguments about why charges should not be imposed.

8. On 4 March 2011, the First Assistant Director-General of AusAID's Corporate Enabling Division reached a decision on Mr Wood's request for internal review. He corrected a technical error in the original charges calculation, resulting in a reduced assessment of charges of $558. He decided not to further reduce the charges, apart from this technical correction. In his decision letter he said:

I have concluded there is a general public interest in the giving of access to the documents (s 29(5)(b)) subject to any applicable redactions as per the exemptions clauses in the FOI Act. I have also decided that I have no information that would lead me to conclude the payment of the charge would cause financial hardship to the applicant (s 29(5)(a)).

9. On 8 March 2011, Baljurda sought IC review of AusAID's internal review decision under s 54L of the FOI Act.[4]

 Decision under review

10. The decision under review is AusAID's internal review decision of 4 March 2011 to refuse the applicant's request that charges be reduced or not imposed.

11. Mr Wood has not challenged the calculation of charges (as corrected on internal review) and there is no reason to doubt the accuracy of that assessment. Rather, he has challenged AusAID's decision not to exercise, at his request, the discretion conferred on it by s 29(4) of the FOI Act to reduce or not impose a charge.

 The discretion to reduce or not to impose a charge

12. Section 29 of the FOI Act sets out the procedure by which FOI processing charges are assessed, notified, and adjusted. The agency makes a preliminary assessment of the amount of the charge (s 29(1)(b)). An FOI applicant can contend that that charge should be reduced or not imposed (s 29(1)(f)(ii)). The agency must then decide whether to reduce or not impose that charge, and notify the applicant of its decision, within 30 days (s 29(6)).

13. Section 29(4) of the FOI Act provides:

Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed.

14. In deciding whether to exercise the broad discretion in s 29(4), a decision maker may consider any relevant matter.[5] However, there are two matters that the decision maker must take into account when exercising the discretion. Section 29(5) provides:

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.

15. In the decision under review, AusAID agreed with Mr Wood that the release of the documents would be in the public interest, but decided not to reduce or not impose the charge because paying that charge would not cause Baljurda financial hardship. By letter to the Office of the Australian Information Commissioner, dated 25 May 2011, AusAID explained that:

This decision was taken as the applicant presented no information about possible financial hardship that might be caused by the imposition of charges. In these circumstances it is reasonable to impose charges in order to offset the significant cost of processing this application, consistent with OAIC guidelines on charges (4.47), which indicate that it is open to an agency to impose a charge even where a public interest purpose for disclosure has been established.
The figure of $558 reflects the lowest reasonable cost for processing, noting that the documents contain sensitivities that will require legal advice and need to be considered in detail by the decision maker. Third party consultation with a foreign government is also anticipated.

16. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. As AusAID pointed out, the Guidelines explain that ‘[i]t is open to an agency or minister to impose a charge even though a public interest purpose for disclosure has been established'.[6] However, it is also open to an agency to reduce or not impose a charge even where an applicant has not demonstrated that payment of the charge, or part of it, would cause financial hardship. Financial hardship is a factor that a decision maker must take into account in deciding whether to reduce or not impose a charge; but it is not the only factor, and it is not determinative.[7]

17. And, as the Guidelines go on to explain, ‘there is no onus on an applicant to justify his or her case. It is for an agency or minister to reach a decision on the merits of the request'.[8]

 Is giving access to the document in the public interest?

18. Section 29(5)(b) requires me to consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public'. As the Guidelines explain, the issue is not whether it is in the public interest to reduce or not impose a charge, nor whether it is in the public interest for a particular applicant to be granted access to a document.[9] In Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301, Beazley J said:

The [Administrative Appeals] Tribunal has consistently, and in my view correctly, accepted that the proper approach to the question of benefit to the general public is that stated in Cazalas v US Department of Justice (1983) 709 F 2d 1051 at 1053. In Cazalas, it was held that the question of benefit to the general public was concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the community.[10]

19. As noted above,[11] Australia's contributions to the RAMSI partnership represent a significant component of the large amount of development assistance that Australia provides to the Solomon Islands. The effectiveness of accountability mechanisms applicable to RAMSI, and the extent of corruption more generally in the Solomon Islands, are clearly of general public interest in Australia.

20. Mr Wood has argued, and AusAID has not disputed,[12] that there is little information in the public domain on the accountability component and anti-corruption projects undertaken by RAMSI and funded by the Australian Government.

21. Deciding whether the giving of access to documents is in the general public interest or in the interest of a substantial section of the public will ordinarily require consideration both of the content of the documents and the context of their release.[13] I have not examined the documents in question, but it is clear from their titles that they concern accountability mechanisms for RAMSI and possible corruption in the Solomon Islands.

22. I find that the giving of access to the documents under review would be in the general public interest for the purposes of s 29(5)(b) of the FOI Act. I note that AusAID came to the same conclusion.

 Other matters that may be taken into account

23. Section 29(5) makes it clear that s 29(4) gives a general discretion to reduce or not impose a charge, including for reasons other than financial hardship or the public interest. Given my conclusion about the public interest considerations, there is no need to take any other matters into account.[14]

 Reducing or not imposing a charge

24. It is clear from the scheme of s 29 of the FOI Act and the Freedom of Information (Charges) Regulations 1982 that some FOI applicants can be required to meet some of the costs of processing their applications.[15] Section 29(4) gives the decision maker a discretion to reduce or not to impose a charge that would otherwise apply.

25. Once a decision maker has decided that giving access to documents would be in the general public interest, it is still open to them to decide that the full charge should apply. The Guidelines explain that a decision maker might decide that it is appropriate to impose a charge where, for example:

  • the applicant can be expected to derive a commercial or personal benefit or advantage from being given access and it is reasonable to expect the applicant to meet all or part of the FOI charge
  • the documents are primarily of interest only to the applicant and are not of general public interest or of interest to a substantial section of the public
  • the information in the documents has already been published by an agency and the documents do not add to the public record, or
  • the applicant has requested access to a substantial volume of documents and significant work would be required to process the request.[16]

These examples (apart from the second) apply even where giving access to documents would be in the general public interest.

26. In this case, as noted above,[17] AusAID says that the documents will need to be considered in detail when AusAID decides whether to give Baljurda access to them, and that the decision-making process will involve legal advice and consultation with a foreign government.

27. It appears that AusAID essentially decided not to reduce the charge on the basis that there was no suggestion that payment of the charge would cause financial hardship, and that the full charge of $558 ‘reflects the lowest reasonable cost for processing'.

28. But AusAID also decided (correctly) that giving access to the documents requested would be in the general public interest. In such circumstances, a decision maker cannot exercise the discretion in s 29(4) solely on the basis that, if the charge is not paid in full, the applicant will not be meeting the reasonable cost of processing their FOI application. Any decision to reduce or not impose a charge will always mean that an applicant is not required to meet all of those costs.

29. When making a decision under s 29(4), a decision maker must balance any public interest in giving access to the documents against a possible reduction in the charge payable. AusAID does not appear to have done this.

30. As I have decided that the giving of access to the documents under review would be in the general public interest for the purposes of s 29(5)(b), I must now consider what level of reduction in charges (if any) is appropriate.

31. If Baljurda, or Mr Wood, were likely to derive a commercial or personal benefit from being given access to the documents under review, this would weigh against a reduction or non-imposition of charges.[18] However, I have been given no evidence to conclude that either will obtain any such benefit.

32. In this case, the general public interest in the disclosure of the documents sought is considerable: they concern accountability mechanisms and possible corruption relating to the expenditure of large amounts of Australian aid money. I think it is appropriate to reduce the charge by 75% rather than to not impose a charge. This balances the public interest issues with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 The public interest test for conditional exemptions

33. If Baljurda agrees to pay the reduced charge, then AusAID will have to decide whether to give Baljurda access to the documents sought. In making that decision, AusAID may need to apply the public interest test in relation to one or more of the public interest conditional exemptions in Division 3 of Part IV of the FOI Act. As I explained in Besser and Department of Infrastructure and Transport [2011] AICmr 2, that test is different from the public interest test for the purposes of deciding to reduce or to not impose a charge.[19]

 Decision

34. Under s 55K of the FOI Act, I set aside the Department's decision of 4 March 2011 and decide, in substitution for that decision, to reduce the charge by 75% to $139.50. 

Dr James Popple
Freedom of Information Commissioner
18 November 2011

 

Review rights

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] AusAID, What is RAMSI www.ramsi.org/about/what-is-ramsi.html.

[2] Bob McMullan MP, ‘Australian aid puts more Solomon Islands children in school' (Media Release, AA 33-10, 9 April 2010) www.ausaid.gov.au/media/previous.cfm.

[3] Estimated figures for 2010–11 — AusAID, RAMSI (22 February 2011) www.ausaid.gov.au/country/solomons/ramsi.cfm.

[4] The original FOI application and the application for internal review were made by Mr Wood in his capacity as director of Baljurda. The IC review application was made by Mr Wood on behalf of Baljurda.

[5] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (2010) [4.45].

[6] Guidelines [4.47].

[7] Guidelines [4.45], [4.46] and [4.57].

[8] Guidelines [4.47].

[9] Guidelines [4.51].

[10] (1995) 61 FCR 301, 307.

[11] See [3] and [4] above.

[12] In an IC review, the agency concerned has the onus of establishing that the agency's decision was justified and that the Information Commissioner should give a decision adverse to the IC review applicant (s 55D).

[13] Guidelines [4.52].

[14] See Guidelines [4.57] for examples of other circumstances in which it may be thought appropriate to reduce or not impose a charge.

[15] An FOI applicant will never be required to pay the full cost of their FOI application because there is no charge for the first five hours of the agency's time spent in making an access decision (Freedom of Information (Charges) Regulations 1982, Schedule, Part I, item 5), and no charge at all for access to a document that contains the applicant's personal information (reg 5(1)).

[16] Guidelines [4.46].

[17] See [15] above.

[18] Guidelines [4.53].

[19] [2011] AICmr 2, [29]–[30].