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'J' and Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AICmr 16 (14 June 2012)

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

Summary of case details
Applicant: 'J'
Respondent: Department of Industry, Innovation, Science, Research and Tertiary Education
Decision date: 14 June 2012
Application number: MR11/00176
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 Industry, Innovation, Science, Research and Tertiary Education (the Department)[1] of 16 May 2011 to reduce the charge applicable under s 29 of the Freedom of Information Act 1982 (the FOI Act) by 25%.

 Background

2. On 13 January 2011, the applicant applied to the Department for access to specified documents. Following a telephone discussion and further written correspondence, the applicant modified the scope of his request to documents relating to:

  • attempts to harmonise regulation of State-based vocational education and training (VET)
  • fragmentation between jurisdictions regulating the VET sector
  • the Council of Australian Governments' decision, at its meeting in December 2009, to address this fragmentation
  • the establishment of the National Standards Council, and
  • issues of national consistency between State registering bodies and published national standards, guidelines or handbooks.

The applicant limited his request to documents dated later than 1 January 2007, and excluded some documents relating to a tender process.

3. On 14 February 2011, the Department provided the applicant with a preliminary estimate of a charge of $2265.10. This included 105 hours of decision-making time relating to approximately 176 documents, comprising an estimated 1484 pages. The estimate envisaged consultation with 20 affected third parties. On 11 March 2011, the applicant asked the Department to waive the charge under s 29(4) of the FOI Act on public interest grounds.

4. On 11 April 2011, the Department advised the applicant that it had decided not to waive or reduce the charge. On 14 April 2011, the applicant applied for internal review of that decision. On 16 May 2011, the Department decided to reduce the charge by 25% to $1698.82.

5. On 4 July 2011, the applicant 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 16 May 2011 to reduce the charge payable by 25% to $1698.82.

 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.[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?

10. The applicant 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.[3]

12. The applicant argued that the information in the documents sought would be of interest to every person who has been trained at any institution in any state where there were issues of consistency of standards. The Department accepted that the documents that the applicant had requested related to the issue of consistency, and efforts being made to improve quality, across the VET sector. The Department claimed that a large volume of material was available to the public about these issues, including some of the information contained in the documents sought by the applicant. But it agreed that some of the information in those documents was not publicly available, and decided that giving access to the documents in question was in the interest of a substantial section of the public.

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

 Exercising the discretion

14. 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.

15. 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 think that there is a limited public interest in the release of those documents.

16. I believe that it is appropriate to reduce the charge applicable in this case by 25% — 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

17. Under s 55K of the FOI Act, I affirm the Department's decision of 16 May 2011 to reduce the charge by 25% to $1698.82.

James Popple
Freedom of Information Commissioner

14 June 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] The decision under review was made by the Department of Education, Employment and Workplace Relations. However, following a machinery of government change, the Department of Industry, Innovation, Science, Research and Tertiary Education became responsible for the FOI request that is the subject of this IC review: see Commonwealth, Administrative Arrangements Order, 14 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, [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; 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. 3) [2012] AICmr 15.

[4] Guidelines, [4.47].

[5] Guidelines, [4.52].