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Briggs and Department of the Treasury (No. 2) [2012] AICmr 17 (15 June 2012)

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

Summary of case details
Applicant: Jamie Briggs MP
Respondent: Department of the Treasury
Decision date: 15 June 2012
Application number: MR11/00321
Catchwords:

Freedom of Information — Charges — Request for access to draft versions of a public document — 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 the Treasury (the Treasury) of 23 September 2011 not to reduce or waive the charge applicable under s 29 of the Freedom of Information Act 1982 (the FOI Act).

 Background

2. On 10 July 2011, the Deputy Prime Minister and Treasurer and the Minister for Climate Change and Energy Efficiency released a report entitled Strong growth, low pollution: modelling a carbon price.[1]

3. On 14 July 2011, Mr Jamie Briggs MP, the federal member for Mayo, applied to the Treasury for access to ‘[a]ll draft versions' of the report. In subsequent consultations with the Treasury, Mr Briggs narrowed the scope of his request to ‘all substantive draft versions' of the report ‘from 1 June 2011'.

4. On 17 August 2011, the Treasury provided Mr Briggs with a preliminary estimate of a charge of $2717.31. This included approximately 122 hours of decision-making time relating to 27 documents, comprising more than 650 pages. On 25 August 2011, Mr Briggs asked the Treasury to reduce or not impose the charge under s 29(4) of the FOI Act on public interest grounds. On 23 September 2011, the Treasury decided not to reduce or waive the charge.

5. On 28 September 2011, Mr Briggs sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

6. The decision under review is the Treasury's decision on 23 September 2011 not to reduce or waive the charge payable.

 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. Mr Briggs 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. 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] Furthermore, there is no presumption that a fee should be reduced or waived by reason only that the applicant is a member of Parliament.[5] 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.[6] The fact that Mr Briggs is a member of Parliament, and would be in a position to make use of documents on carbon price modelling in parliamentary or public debate, is a factor in favour of reducing or waiving the charge.

13. Mr Briggs's request is for all substantive draft versions, after 1 June 2011, of the Strong growth, low pollution report. In his application for IC review, Mr Briggs argued that the report ‘goes to the heart of the Government's plan to introduce a carbon tax' and ‘outlines the implications of a carbon tax for the economy, industry and Australian households'. He wrote:

The Government's decision to introduce a carbon tax has dominated political debate since it announced intentions to do so in early 2011. All documents regarding a carbon tax, particularly those relating to the drafting of the Treasury modelling report, which underpins the Government's policy, [are] in the public interest.
In later correspondence with the Office of the Australian Information Commissioner, Mr Briggs's office added:
Considering the level of interest in the carbon price in the political and public sphere, documents relating to the development and drafting of the report-a report which underpins the Government's carbon price policy-would be of great interest to a substantial section of the public.
The public interest is further enhanced when considering the prospect that this current level of interest will remain so at least through to the next federal election.
The Treasury has released additional modelling,[7] however this does not cover the development and drafting of the ‘Strong Growth, Low Pollution' modelling report.

14. In its letter to Mr Briggs, giving reasons for deciding not to reduce or waive the charge, the Treasury said:

Given the preparatory and tentative nature of the documents, and the fact that the final report and an update have already been published ... the documents which fall within the scope of your request would not lead to more informed public debate and would not make a contribution to the quality or substance of the public or parliamentary debates on this issue.

15. Subject to any relevant exemption, there is a general public interest in the disclosure of documents that reveal the reasons for government decisions and the adoption of government policies.[8] The release of such documents is important to government accountability.

16. There may be a public interest in the release of the draft of a document that has been finalised and published. In one sense, disclosure of non-exempt material—including draft material—will always be in the public interest: this is clear from the objects of the FOI Act (s 3). There may also be a particular public interest in the release of a draft document that, for example, clarifies some public controversy about the process of developing the final version of that document.

17. There is no doubt that there was considerable public interest in the release of the Strong growth, low pollution report, given its contents: economic modelling prepared to inform policy design and public discussion about carbon pricing.[9] But no case has been made out, in this IC review, as to why there is a particular public interest in the disclosure of draft versions of that report. There is no suggestion that disclosure of the drafts might contribute to government accountability in a way that the disclosure of the final report has not.

18. This does not mean that the draft versions of the report should not be disclosed, or that (if a conditional exemption applies) access to those drafts would be contrary to the public interest: see [21] below. However, when deciding whether to reduce or waive the charge imposed by the Treasury (so that the Treasury can proceed to decide whether those draft documents should be released under the FOI Act), I have to consider whether a public interest case has been made out, bearing in mind that the final report has been made public.

19. The giving of access to the documents requested by Mr Briggs may be in the public interest. But I find that no public interest case has been made out for the purposes of s 29(5)(b) of the FOI Act. That is, no public interest case has been made to persuade me to waive or reduce the charge.

 Exercising the discretion

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.[10] I have not examined the draft documents in question in this IC review. However, given their nature, and given that no case has been made that there is a public interest in their release for the purposes of s 29(5)(b), I believe that it is appropriate to not exercise the discretion to reduce or waive the charge. This balances the public interest in the release of documents (including draft documents) with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 The public interest test for conditional exemptions

21. If Mr Briggs agrees to pay the charge, then the Treasury will have to decide whether to give him access to the documents sought. In making that decision, the Treasury 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 explained above, that test is different from the public interest test for the purposes of deciding to reduce or to not impose a charge.[11]

 Decision

22. Under s 55K of the FOI Act, I affirm the Treasury's decision of 23 September 2011 not to reduce or waive the charge.

James Popple
Freedom of Information Commissioner

15 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] See http://archive.treasury.gov.au/carbonpricemodelling/.

[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, [4.53].

[6] Guidelines, [4.55]. See also Fletcher and Department of Broadband, Communications and the Digital Economy (No. 3) [2012] AICmr 15, [12], [21]–[22].

[7] The Deputy Prime Minister and Treasurer and the Minister for Climate Change and Energy Efficiency released an update of the report on 21 September 2011. The update ‘revises the policy parameters of the national and sectoral economic modelling' and presented two additional scenarios: http://archive.treasury.gov.au/carbonpricemodelling/.

[8] Guidelines, [4.55].

[9] Commonwealth, Strong growth, low pollution: modelling a carbon price, 2011, p iii.

[10] Guidelines, [4.52].

[11]Guidelines, [4.51]. See also Besser and Department of Infrastructure and Transport [2011] AICmr 2, [29]–[30].