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Fletcher and Department of Broadband, Communications and the Digital Economy [2012] AICmr 1 (6 January 2012)

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

 

Summary of case details
Applicant: Paul Fletcher MP
Respondent: Department of Broadband, Communications and the Digital Economy
Decision date: 6 January 2012
Application number: MR11/00180
Related IC review: Smith and Department of Broadband, Communications and the Digital Economy [2012] AICmr 2
Catchwords: Freedom of Information – Charges – Whether agency should exercise discretion to reduce or not impose charge – (CTH) Freedom of Information Act 198229(5)(b)

 

Contents

 Summary

1. I affirm the decision of the Department of Broadband, Communications and the Digital Economy (the Department) of 20 June 2011 to reduce the charge applicable under s 29 of the Freedom of Information Act 1982 (the FOI Act) by 50%.

 Background

2. Lazard Australia Pty Limited (Lazard) advised the Australian Government on the arrangements entered into between the Government, Telstra Corporation Limited (Telstra) and NBN Co Limited regarding the national broadband network.

3. On 5 April 2011, Mr Paul Fletcher MP, the federal member for Bradfield, applied to the Department of Finance and Deregulation for access to documents relating to or detailing:

  • the date Lazard or Lazard Australia (‘Lazard') was appointed to advise the Government through its agreement with Telstra to participate in the national broadband network
  • the fee Lazard has been paid to date, and what fees will be paid in the future
  • the timetable detailing the appointment process prior to the appointment of Lazard, including:
    • which other firms were considered
    • the composition of the selection panel
    • which ministers and/or ministerial staff were aware of the process for the appointment
    • when were ministers and/or ministerial staff informed of the appointment of Lazard; and
    • whether any (and if so, which) ministers and/or ministerial staff were involved in the selection process and/or part of the selection panel
  • any records of contact, emails or correspondence between ministers and ministerial staff regarding the appointment of Lazard
  • a copy of the reports of the selection panel
  • copies of the submission from Lazard and any other firms which tendered for the appointment.[1]

4. Mr Fletcher's request was transferred to the Department. On 28 April 2011, the Department provided Mr Fletcher with a preliminary estimate of a charge of $3271.76, which included over 160 hours of decision-making time. Mr Fletcher wrote to the Department on 20 May 2011 requesting that the charge be waived under s 29(4) of the FOI Act on public interest grounds.

5. On 20 June 2011, the Department advised Mr Fletcher of its decision to reduce the charge by 50% to $1635.88. This, the Department said, reflected the general public interest in the release of the documents, balanced against the amount of work required to process Mr Fletcher's request.

6. On 4 July 2011, Mr Fletcher sought IC review of this decision under s 54L of the FOI Act.

7. Mr Fletcher has not contended that the charge has been wrongly assessed, and there is no reason to doubt the accuracy of the Department's estimate. Rather, he has challenged the Department's decision not to exercise, at his request, the discretion conferred on it by s 29(4) of the FOI Act to not impose a charge at all.

 Decision under review

8. The decision under review is the decision of the Department on 20 June 2011 to reduce the charge payable by 50% to $1635.88.

 The discretion to reduce or not to impose a charge

9. Section 29 of the FOI Act provides for charges to be imposed in respect of FOI requests and the process by which they are assessed, notified and adjusted. Under s 29(1)(b), a preliminary assessment of the amount of the charge is made and the basis of the assessment is outlined by the agency. The applicant may then contend that the charge should be reduced or not imposed (s 29(1)(f)(ii)). The agency must decide whether to reduce or not impose the charge (s 29(4)) and notify the applicant of its decision within 30 days (s 29(6)).

10. 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.

11. In deciding whether to exercise the broad discretion in s 29(4), a decision maker may consider any relevant matter.[2] However, s 29(5) provides that I must consider whether giving access to the documents in question is in the general public interest, or in the interest of a substantial section of the public; and whether the charge would cause financial hardship.

 Would payment of a charge cause financial hardship?

12. Mr Fletcher has not contended that payment of the charge would cause him financial hardship. Accordingly, I will not consider this issue further.

 Is giving access to the document in the public interest?

13. 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'. 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. Part 4 of the Guidelines explains the factors to take into account when considering the public interest in charges decisions. I have also discussed this issue in previous IC review decisions.[3]

14. 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.[4] The question is whether there is a benefit from the release of the documents flowing more generally to the public or a substantial section of the public.[5]

15. There is no presumption that the public interest test is satisfied by reason only that the applicant is a member of Parliament; it is necessary to go beyond the status of the applicant and to look at other circumstances.[6] However, a member of Parliament may more easily make a public interest argument, because they may make use of a document obtained under the FOI Act in parliamentary or public debate on an issue of public interest or general interest in their electorate.[7]

 16. Mr Fletcher argued that the national broadband network represents a substantial investment of public funds and that there is no publicly available information about the process by which Lazard was appointed. As a result, he says, there is a general public interest in understanding how these public funds were utilised.

17. The Department agreed with Mr Fletcher's argument, deciding that there ‘is likely to be a general public interest in the release of documents relating to the administration of a government procurement process as it involves the expenditure of public funds and the selection of a commercial entity to provide services to the Department'.

18. I agree, and find that the giving of access to the documents requested is in the general public interest.

 Exercising the discretion

19. As the Guidelines explain, it is open to an agency or minister to impose a charge even though a public interest purpose for disclosure has been established.[8] For example, it may be appropriate to impose a charge where an applicant has requested access to a substantial volume of documents and significant work would be required to process the request.[9]

20. In this case, the request is for access to approximately 30 documents – not a substantial volume. Nonetheless, the Department asserts that significant work would need to be undertaken to assess any sensitive third-party information in the documents, and to consult with third parties to determine the potential impact of disclosure of that information. It also asserts that considering the release of documents relating to the tender process, including details of fees that the Department has and expects to pay Lazard, will involve the consideration of relevant exemptions so as to not prejudice any current commercial negotiations with other stakeholders.

21. I have not examined the documents in question. However, given their nature, I accept that processing this FOI request will require the Department to undertake significant work to assess third-party information and consult third parties. I also consider that significant work will need to be undertaken to consider and apply any relevant exemptions.

22. In weighing up the public interest in the release of documents relating to the procurement of Lazard against the significant amount of work that will need to be completed by the Department to process the request, I believe that it is appropriate to reduce the charge applicable in this case, but not to waive it completely.

23. I agree with the Department's decision to reduce the charge by 50%.

 The public interest test for conditional exemptions

24. If Mr Fletcher agrees to pay the reduced charge, then the Department will have to decide whether to give him access to the documents sought. In making that decision, the Department 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.[10]

 Decision

25. Under s 55K of the FOI Act, I affirm the Department's decision of 20 June 2011.

Dr James Popple
Freedom of Information Commissioner

6 January 2012

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] Mr Fletcher's FOI application was in almost identical terms to an application made by Tony Smith MP, the federal member for Casey. Mr Smith's application is the subject of another IC review: Smith and Department of Broadband, Communications and the Digital Economy [2012] AICmr 2. In each IC review, for the reasons I give in this IC review, I agree with the Department's decision to reduce the assessed charge by 50%. As a practical matter, Mr Fletcher and Mr Smith won't both have to pay this reduced charge. If one of them proceeds with his application, the Department must make publicly available on its disclosure log (s 11C) the documents it gives him access to, unless an exception applies (s 11C(1)).

[2] 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].

[3]Baljurda Comprehensive Consulting Pty Ltd and the Australian Agency for International Development [2011] AICmr 8; Besser and Department of Infrastructure and Transport [2011] AICmr 2.

[4]Guidelines [4.51].

[5]Guidelines [4.52].

[6]Guidelines [4.53].

[7]Guidelines [4.55].

[8]Guidelines [4.47].

[9]Guidelines [4.46].

[10] [2011] AICmr 2, [29]–[30].