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Besser and Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AICmr 13 (30 April 2012)

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

Summary of case details
Applicant: Linton Besser
Respondent: Department of Industry, Innovation, Science, Research and Tertiary Education
Decision date: 30 April 2012
Application number: MR11/00136
Catchwords:

Freedom of information — Charges — Whether agency should exercise discretion to reduce or not impose charge — (CTH) Freedom of Information Act 1982s 29(5)(b)

 Contents

 Summary

1. I set aside the decision of the Department of Industry, Innovation, Science, Research and Tertiary Education (the Department)[1] of 15 August 2011 and substitute my decision, under s 29(4) of the Freedom of Information Act 1982 (the FOI Act), reducing the charge by 50%.

 Background

2. On 27 April 2011, Mr Linton Besser, a journalist with the Sydney Morning Herald, made a request under the FOI Act to the Department seeking access to:

  1. all internal audit reports undertaken by the Department during financial years 2007/8, 2008/9 and 2009/10
  2. to clarify, this is material compiled by the department's internal compliance and audit unit, whatever name that department goes under, which examines cases of fraud, corruption or other cases of non-compliance or breaches of protocol, by department employees, contractors and consultants
  3. a comprehensive schedule of documents captured by this application.

He also requested that ‘any processing costs beyond the preliminary five hours are waived or reduced by 50 per cent on the grounds of the public interest'.

3. On 3 May 2011, the Department sought clarification of Mr Besser's request. On 16 May 2011, the Department provided Mr Besser with a list of 14 internal audit reports completed during the specified financial years, ‘to assist [him] in narrowing [his] request'. On the same day, Mr Besser requested access to all 14 audit reports.

4. On 27 May 2011, the Department issued Mr Besser with an assessment of a charge of $565.60, and decided not to waive or reduce that charge.

5. On 31 May 2011, Mr Besser applied for IC review of the Department's assessment of the charge.

6. On 14 July 2011, after correspondence with the Office of the Australian Information Commissioner (the OAIC), Mr Besser sought a review, by the Department, of the Department's assessment. The Department responded on 15 August 2011, advising Mr Besser that the charge would not be waived or reduced. Mr Besser sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

7. The decision under review is the Department's decision on 15 August 2011 not to reduce or waive the charge in respect of Mr Besser's request.

 The discretion to reduce or not to impose a charge

8. 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)).

9. 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.

10. 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 cause financial hardship to the applicant?

11. Mr Besser 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?

12. 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]

13. There is no presumption that the public interest test is satisfied by reason only that Mr Besser is a journalist; it is necessary to go beyond the status of the applicant and to look at other circumstances.

14. In its submissions to the OAIC, the Department contended that ‘an audit report on its own does not form the sole basis of checks and balances or process improvement within a department'. I am sure that this is true: I have no doubt that the Department makes use of other mechanisms, in addition to its internal audit program, to ensure that its processes are as effective and efficient as possible. But the fact that its internal audit program is but one of several such mechanisms does not mean that the release of an audit report will not be in the public interest.

15. In the decision under review, the Department's decision maker wrote: ‘[w]hile I appreciate that it is in the interests of the public that the internal audit function of an agency operates effectively, I do not consider that the free release of documents detailing audit information will necessarily contribute to that outcome.' This misses the point. The decision to be made under s 29(5)(b) is whether giving access to the documents sought is in the general public interest, or in the interest of a substantial section of the public. This is a much broader issue than whether disclosure of an audit report contributes to the effective operation of an agency's internal audit program.

16. The possible adverse effect of the release of an audit report on the Department's internal audit program may become relevant later in the FOI process. For example, it would be relevant to the application of the conditional exemption in s 47E (certain operations of agencies) that the release of an audit report would prejudice the effectiveness of the Department's internal audit procedures.[4] If s 47E, or one of the other public interest conditional exemptions in the FOI Act applies,[5] the Department would then need to apply the public interest test in s 11A(5).[6] Even if the Department, in applying that test, decides that access to the document would, on balance, be contrary to the public interest, the Department must then consider whether access could be provided to an edited copy of the audit report, with the exempt matter deleted (s 22).

17. But these considerations do not arise when making a decision under s 29(5)(b), which is about whether to reduce or not impose a charge—not about whether any exemption applies. As I explained in Besser and Department of Infrastructure and Transport [2011] AICmr 2, it is not a strong public interest consideration that giving access to internal audit reports would reassure the public that an agency's audit function is operating effectively. More important is what such documents might reveal about an agency's compliance with its obligations, including those imposed by the Financial Management and Accountability Act 1997 (the FMA Act) such as the requirement to manage its affairs in a way that promotes the efficient, effective, economical and ethical use of Commonwealth resources.[7]

18. 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.[8] I have not examined the audit reports in question in this IC review. But the list of audit reports compiled by the Department reveals that they cover topics such as contract management, procurement processes, legislative compliance, payment of grants, and the internal audit program itself. The Department, in its submissions, argued that, because these audit reports ‘do not relate to a matter of public debate or discussion', access to the reports is not in the public interest. But these audit reports clearly have the potential to reveal important information about whether the Department is using Commonwealth resources consistently with its obligations under the FMA Act.

19. The Department, in its submissions, argued that, because the audit reports requested by Mr Besser are ‘relatively old', access to the reports is not in the public interest. I do not agree that these audit reports are so old that the public interest in their access is significantly reduced.

20. I find that the giving of access to the documents requested by Mr Besser is in the general public interest for the purposes of s 29(5)(b) of the FOI Act.

 Exercising the discretion

21. 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.[9] 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.

22. The Department has identified 376 pages relevant to the scope of the request. It claims—and I accept—that it will take a significant amount of work to process Mr Besser's request. In the reasons for its decision, the Department also claimed that the charge represented the ‘minimal foreseeable cost' of processing the request, and noted that the charge had been calculated taking into account that the first five hours of decision-making time are free for all applicants. The fact that the charge was ‘already reduced' by those five free hours was given, by the Department, as one of the reasons why it did not reduce or waive the charge.

23. It is not appropriate to take account of this ‘reduction' in determining whether or not to exercise the discretion under s 29(4). The Freedom of Information (Charges) Regulations 1982 govern the charge payable for processing an FOI request. Agencies are expressly precluded from charging for the first five hours of the time spent in making an access decision.[10] This is not a reduction from the appropriate charge; it is part of the process by which the appropriate charge is calculated.[11]

24. In weighing up the public interest in the release of the documents that Mr Besser has sought, and the amount of work that the Department will need to do to process his request, I believe that it is appropriate to reduce the charge applicable in this case by 50%. This balances the public interest issues with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 Decision

25. Under s 55K of the FOI Act, I set aside the Department's decision of 15 August 2011 and decide, in substitution for that decision, to reduce the charge by 50% to $282.80.

Dr James Popple
Freedom of Information Commissioner

30 April 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] At all times relevant to this IC review, the Department was called the Department of Innovation, Industry, Science and Research. Its name changed on 15 December 2011.

[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] See, for example, Besser and Department of Infrastructure and Transport [2011] AICmr 2; Baljurda Comprehensive Consulting Pty Ltd and the Australian Agency for International Development [2011] AICmr 8; Fletcher and Department of Broadband, Communications and the Digital Economy [2012] AICmr 1; Briggs and Department of the Treasury [2012] AICmr 5.

[4] See s 47E(a).

[5] See Division 3 of Part IV of the FOI Act.

[6] That test is different from the public interest test for the purposes of deciding to reduce or to not impose a charge under s 29(5)(b): Guidelines [4.51]. See also Besser and Department of Infrastructure and Transport [2011] AICmr 2, [29]–[30].

[7] FMA Act, s 44.

[8] Guidelines [4.52].

[9] Guidelines [4.47].

[10] Freedom of Information (Charges) Regulations 1982, Schedule, Part I, item 5.

[11] Similarly, 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. See Baljurda Comprehensive Consulting Pty Ltd and the Australian Agency for International Development [2011] AICmr 8, [28].