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Fletcher and Department of Broadband, Communications and the Digital Economy (No. 3) [2012] AICmr 15 (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: MR11/00278
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 Broadband, Communications and the Digital Economy (the Department) of 10 August 2011 and substitute my decision, under s 29 of the Freedom of Information Act 1982 (the FOI Act), reducing the charge by 50%.

 Background

2. On 1 June 2011, Mr Paul Fletcher MP, the federal member for Bradfield, applied to the Department for access to ‘all documents in the possession of the Department concerning [the] decision to establish the Broadband Champions Program, and the process of selecting champions including criteria used and persons approached'.

3. On 28 June 2011, the Department provided Mr Fletcher with a preliminary estimate of a charge of $2544.75, which included over 115 hours of decision-making time relating to around 200 documents. On 11 July 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 10 August 2011, the Department advised Mr Fletcher of its decision to reduce the charge by 25% to $1908.56. 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 5 September 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 10 August 2011 to reduce the charge payable by 25% to $1908.56.

 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. According to the Department's national broadband network (NBN) website, ‘[b]roadband champions are a group of prominent Australians, each respected experts in their field, who are passionate about helping households and businesses to better understand how they can benefit from high-speed broadband.'[4] Mr Fletcher argued that the NBN is the largest infrastructure project in Australia's history, and that issues surrounding the decision to build the NBN are the subject of public and Parliamentary debate. He also argued that there is a public interest in understanding the genesis of the Broadband Champions Program and the circumstances surrounding the appointment of the ‘champions'.

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.[5] 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 accepted that there is ‘a general public interest in the establishment and constitution of programs run by the Government that relate to the NBN in that disclosure of the documents will enable the public to make an informed assessment of the merits of the programs'. The Department also accepted that ‘there may have been some public interest surrounding the selection of champions for the program on the day the list [of champions] was published in The Australian newspaper'. However, the Department decided that ‘the Broadband Champions Program is of specific interest to few Australians and ... its establishment or constitution would not be of interest to a substantial section of the public'. For this reason, and because of the amount of work required to process Mr Fletcher's request, the Department did not waive the charge, but reduced the charge by 25%.

18. Mr Fletcher, in making his IC review application, argued that the Department had not struck the correct balance and that the charge should have been reduced by more than 25% or waived completely.

19. 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.[6] I have not examined the documents in question in this IC review. However, the nature of the public interest in the disclosure of those documents can be determined from their subject matter.

20. The development of the NBN is a significant infrastructure project, which involves the expenditure of very large amounts of public money. The Broadband Champions Program is relatively small, and appears to be not so much a component of the NBN as a support to it. The extent of the public interest in the Program is considerably less than the public interest in the NBN.

21. As noted at [12] above, there is no presumption that the public interest test is satisfied by reason only that Mr Fletcher is a member of Parliament. 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] The fact that Mr Fletcher is a member of Parliament, and would be in a position to make use of documents on the Broadband Champions Program in parliamentary or public debate, is a factor in favour of reducing or waiving the charge.

22. 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%. This balances the public interest issues—taking account of Mr Fletcher's capacity, as a member of Parliament, to make use of the documents in parliamentary or public debate—with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 Decision

23. Under s 55K of the FOI Act, I set aside the Department's decision of 10 August 2011 and decide, in substitution for that decision, to reduce the charge by 50% to $1272.38.

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 [2012] AICmr 14.

[3] Guidelines, [4.53].

[4] See www.nbn.gov.au/media-centre/broadband-champions/.

[5] Guidelines, [4.47].

[6] Guidelines, [4.52].

[7] Guidelines, [4.55].