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Fletcher and Department of Broadband, Communications and the Digital Economy (No. 2) [2012] AICmr 14 (16 May 2012)

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: 16 May 2012
Application number: MR11/00149
Catchwords:

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

 Contents

 Summary

1. I affirm the decision of the Department of Broadband, Communications and the Digital Economy (the Department) of 3 June 2011 to reduce the charge applicable under s 29 of the Freedom of Information Act 1982 (the FOI Act) by 50%.

 Background

2. On 10 March 2011, Mr Paul Fletcher MP, the federal member for Bradfield, applied to the Department for access to specified documents. On 5 April 2011, he clarified the scope of his request. Mr Fletcher sought access to:

... advice, analysis, or briefings provided by [the Department] to the Minister for Broadband, Communications and the Digital Economy and the Minister's Office relevant to the decision to move [to] the FTTP [fibre-to-the-premises] process and establish the NBN Co.

He limited his request to documents created between 30 June 2008 and 30 June 2009.

3. On 12 April 2011, the Department provided Mr Fletcher with a preliminary estimate of a charge of $9453.35, which included over 420 hours of decision-making time relating to 287 documents. On 5 May 2011, Mr Fletcher wrote to the Department asking that the charge be waived under s 29(4) of the FOI Act on public interest grounds.

4. On 3 June 2011, the Department advised Mr Fletcher of its decision to reduce the charge by 50% to $4726.68. 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.

5. On 8 June 2011, Mr Fletcher sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

6. The decision under review is the Department's decision on 3 June 2011 to reduce the charge payable by 50% to $4726.68.

 The discretion to reduce or not to impose a charge

7. 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)).

8. 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.

9. In deciding whether to exercise the broad discretion in s 29(4), a decision maker may consider any relevant matter.[1] 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?

10. 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?

11. 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.[2]

12. There is no presumption that the public interest test is satisfied by reason only that Mr Fletcher is a member of Parliament; it is necessary to go beyond the status of the applicant and to look at other circumstances.[3]

13. Mr Fletcher argued that the fibre-to-the-premises network is the largest infrastructure project in Australia's history, and the subject of public and Parliamentary debate. He also argued that there is little information publicly available about the Government's decision to shift from a fibre-to-the-node network to a (more expensive) fibre-to-the-premises network. For these reasons, he contended, ‘the public interest in understanding the rationale for the decision to build this network with public funds could not be greater'.

14. The Department accepted Mr Fletcher's argument about the general public interest in the documents in question.

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

 Exercising the discretion

16. 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.[4] 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.

17. The Department explained, in correspondence with the Office of the Australian Information Commissioner, that ‘a key factor that weighed against the public interest in a more significant reduction was the considerable resource implications for the department in processing the request'.

18. Mr Fletcher, in making his IC review application, argued that ‘[t]he decision maker has not struck the right balance in determining that charges should be reduced by half only. The public interest in the information in question being released to a member of Parliament is so significant that the balance should be struck in favour of all charges being waived.'

19. The department has identified 287 documents that are within the scope of Mr Fletcher's request. It asserts that:

  • a majority of these documents have ‘a high level of complexity and significant work will be required to process the request'
  • 120 of the documents are likely to be exempt under s 34 of the FOI Act (Cabinet documents), and
  • third parties will need to be consulted in the course of processing the request.

The Department also provided a list of information that, it says, is part of the significant amount of publicly available information about the decision to switch to the fibre-to-the-premises network.

20. 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.[5] I have not examined the documents in question in this IC review. However, given their nature, I accept that processing this FOI request will require the Department to undertake significant work. This will include considering the application of the Cabinet exemption, and consultation with third parties.

21. In weighing up the public interest in the release of the documents that Mr Fletcher 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%—as the Department did. This balances the public interest issues with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 Decision

22. Under s 55K of the FOI Act, I affirm the Department's decision of 3 June 2011 to reduce the charge by 50% to $4726.68.

James Popple
Freedom of Information Commissioner

16 May 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] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [4.45].

[2] 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; Besser and Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AICmr 13; Fletcher and Department of Broadband, Communications and the Digital Economy (No. 2) [2012] AICmr 15.

[3] Guidelines, [4.53].

[4] Guidelines, [4.47].

[5] Guidelines, [4.52]