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British American Tobacco Australia Ltd and Australian Competition and Consumer Commission [2012] AICmr 19 (30 July 2012)

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

Summary of case details
Applicant: British American Tobacco Australia Ltd
Respondent: Australian Competition and Consumer Commission
Decision date: 30 July 2012
Application number: MR11/00216
Catchwords:

Freedom of information — Request for access to documents — Whether giving access would disclose information that would reasonably be regarded as irrelevant to the request — (CTH) Freedom of Information Act 1982 s 22

 

Freedom of information — Request for access to documents — Whether documents contain deliberative matter — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether documents conditionally exempt from release — Whether contrary to public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982 ss 11A(5), 47C, 47E(d)

 Contents

 Summary

1. I set aside the decision of the Australian Competition and Consumer Commission (the ACCC) of 8 July 2011 and substitute my decision, under ss 11A(3) and (5) and s 22 of the Freedom of Information Act 1982 (the FOI Act), granting access to the six documents that are the subject of this IC review, some modified by deletions.

 Background

2. On 17 February 2011, British American Tobacco Australia Ltd (BATA) applied to the ACCC for access to:

All documents held by the [ACCC] created from 2008 where those documents refer or relate to:
  1. the implementation, legality or effect of plain packaging for tobacco products in Australia;
  2. the impact, including costs, benefits and levels of risk of plain packaging for tobacco products in Australia;
  3. the legality or impact of plain packaging of tobacco products in Australia on Australia's obligations under the:
    • agreement that is generally referred to as the GATT Agreement (General Agreement on Tariffs and Trade);
    • agreement that is generally referred to as the IR/PS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights); or
    • agreement that is generally referred to as the TBT Agreement (Agreement on Technical Barriers to Trade);
  1. current or future amendments currently contemplated to the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 to implement plain packaging for tobacco products in Australia;
  2. current or future amendments currently contemplated to the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 to increase or in any way change the specification of the warning message and corresponding graphic required to cover tobacco packaging.

3. On 27 May 2011, the ACCC wrote to BATA providing its reasons for decision and a schedule of 28 documents that fell within the scope of BATA's request. The ACCC gave BATA full copies of nine documents, edited copies of 18 documents and refused access to one document. In refusing BATA full access to 19 of the 28 documents, the ACCC edited some documents to remove matter it considered irrelevant (s 22) and applied the deliberative process exemption (s 47C).

4. On 27 June 2011, BATA sought an internal review of the ACCC's decision not to grant full access to those 19 documents. On 8 July 2011, the ACCC affirmed its original decision.

5. On 3 August 2011, BATA sought IC review of this decision under s 54L of the FOI Act.

 Decision under review

6. The decision under review is the ACCC's internal review decision on 8 July 2011 to refuse BATA full access to 19 of the 28 documents identified as relevant to its request.

7. On 10 February and on 17 May 2012, the parties reached agreement in accordance with s 55F(1)(a)(ii) of the FOI Act to limit the scope of this IC review to six of the 19 documents: documents 2, 16, 20, 21, 23 and 28 (as they are numbered in the ACCC's schedule of documents). I am satisfied that it is appropriate for me to give effect to the terms of that agreement.[1]

 Edited copies with irrelevant matter deleted (s 22)

8. Section 22(1) of the FOI Act relevantly provides:

22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b) it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request ...

Section 22(2) requires an agency or a minister to prepare an edited copy and give an applicant access to it.

9. The ACCC gave BATA access to edited versions of the six documents that are the subject of this IC review. The ACCC edited four of those documents (documents 2, 16, 20 and 21) by deleting information that it decided was not relevant to BATA's request.

10. I have examined unedited copies of those four documents. I agree with the ACCC that the material that it deleted from document 2 is irrelevant. That material relates to a product safety standard unrelated to BATA's request.

11. However, I do not consider that the information that the ACCC deleted from documents 16, 20 and 21 can reasonably be regarded as irrelevant to BATA's request.

12. Some of the information that the ACCC deleted relates to a public advertising campaign undertaken by the Alliance of Australian Retailers in response to the announcement of the plain packaging policy. In my view, that information is relevant to BATA's request because it relates to the impact or effect of the plain packaging policy.

13. Some of the information deleted relates to the ACCC's investigation of a complaint made about a specific entity in the context of plain packaging of tobacco products. In my view, that information is also relevant to BATA's request because it relates to the impact or effect of the plain packaging policy. However, the documents containing that information may be conditionally exempt under s 47E (certain operations of agencies): see [24]–[30] below.

 Findings

14. The information that the ACCC deleted (on the basis of irrelevance) from the following pages of the following documents:

  • in document 2—is irrelevant to BATA's request
  • in:
    • document 16 (on pages 1–2)
    • document 20 (on pages 5–6, except for the final paragraph on page 6), and
    • document 21 (on pages 10–11, except for the final paragraph on page 11)

is relevant to BATA's request, and the documents should be edited so as to disclose that information to BATA, and

  • in:
    • document 16 (on page 3)
    • document 20 (in the final paragraph on page 6, and on page 7), and
    • document 21 (in the final paragraph on page 11, and on page 12)

is relevant to BATA's request, but may be conditionally exempt under s 47E.

 Deliberative processes exemption (s 47C)

15. Section 47C(1) of the FOI Act provides:

47C Public interest conditional exemptions—deliberative processes

General rule

(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a) an agency; or

(b) a Minister; or

(c) the Government of the Commonwealth; or

(d) the Government of Norfolk Island.

16. 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. As the Guidelines explain:

... the deliberative processes involved in the functions of an agency are its thinking processes—the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.[2]

17. In its reasons for decision, the ACCC said that documents 23 and 28 contain ‘records of opinions expressed and consultation that took place across a range of agencies in canvassing options regarding the implementation of various policy proposals'. And document 2, the ACCC said, contains ‘an opinion that was recorded during the course of ACCC deliberation in assessing the wisdom of a particular proposed course of action'. The ACCC decided that the deliberative process exemption applied to all three of these documents and that, on balance, disclosure of the exempt material in the documents would be contrary to the public interest. The copies of documents 2, 23 and 28 that the ACCC provided to BATA were edited by the deletion of this material.

18. The Guidelines explain that, for the purposes of the FOI Act, the functions of an agency ‘include both policy making and the processes undertaken in administering or implementing a policy'.[3] In my view, the functions of the ACCC include implementation, compliance and enforcement activities relating to the Australian Government's policy for the plain packaging of tobacco products.

19. I have examined unedited copies of the three documents that the ACCC considered exempt under s 47C. I agree with the ACCC that document 2 contains deliberative matter for the purposes of s 47C: one sentence which expresses an ACCC officer's opinion about the risks of a particular proposed course of action.

20. Document 28 (which is reproduced as an attachment in document 23) includes the draft terms of reference for an interdepartmental committee (IDC) on plain packaging of tobacco products. I do not agree with the ACCC that those draft terms of reference are still deliberative matter. They were subsequently adopted without amendment. As the Guidelines explain, the decision or conclusion reached at the end of a deliberative process is not deliberative matter for the purposes of s 47C.[4]

21. Document 28 also includes a list of ‘key plain packaging milestones'. The ACCC deleted from document 28 (and from its reproduction in document 23) two of those milestones on the basis that they were deliberative matter. The deleted milestones refer to the process of obtaining Cabinet approval of a legislative proposal. The ACCC also deleted from document 23, for the same reason, a more detailed timetable regarding the Cabinet approval process. I do not think that this information is deliberative matter.

22. However, the ACCC was correct in identifying other material in document 23 as deliberative matter. This material reflects the IDC's ‘thinking processes' about the legal and practical implications of the plain packaging policy.

 Findings

23. The following documents are conditionally exempt under s 47C and, if exempt, edited copies could be provided to BATA under s 22 as follows:

  • document 2 (with page 3 edited as it was by the ACCC), and
  • document 23 (with pages 4–6 and 9–10 edited as they were by the ACCC).

Document 28 is not conditionally exempt under s 47C.

 Certain operations of agencies exemption (s 47E)

24. Section 47E of the FOI Act relevantly provides:

47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
...
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

25. The ACCC did not invoke s 47E in deciding not to give BATA full access to the documents it sought.

26. At [14] above, I found that the information that the ACCC deleted (on the basis of irrelevance) from:

  • document 16 (on page 3)
  • document 20 (in the final paragraph on page 6, and on page 7), and
  • document 21 (in the final paragraph on page 11, and on page 12)

was relevant to BATA's request, but may be conditionally exempt under s 47E.

27. The information—which is replicated in each of these three documents—is about a complaint made to the ACCC. It gives the identity of the complainant, and outlines the investigative processes that the ACCC undertook in response to that complaint.

28. The ACCC's primary responsibility is to ensure that individuals and businesses comply with the Commonwealth competition, fair trading and consumer protection laws.[5] One way that it achieves this is through the investigation of complaints made to it. Section 155AAA of the Competition and Consumer Act 2010 provides for the protection of (amongst other information) information that was given in confidence to the ACCC and which relates to a matter arising under a ‘core statutory provision'. A core statutory provision is defined to include any provision of the Australian Consumer Law,[6] which includes provisions relating to misleading conduct and representations.[7] The ACCC's information policy notes that the ACCC will, where requested, seek to protect complainants' information ‘to the extent reasonably possible'.[8]

29. I think that the disclosure of the information identified at [26] above, could reasonably be expected to affect the willingness of people to make complaints to the ACCC. This would have a substantial adverse effect on the proper and efficient conduct of the operations of the ACCC.

 Findings

30. The following documents are conditionally exempt under s 47E and, if exempt, edited copies could be provided to BATA under s 22 as follows:

  • document 16 (with page 3 edited as it was by the ACCC)
  • document 20 (with the final paragraph on page 6 deleted, and with page 7 edited as it was by the ACCC)
  • document 21 (with the final paragraph on page 11 deleted, and with page 12 edited as it was by the ACCC).

 The public interest test (s 11A(5))

31. I have found that five of the six documents that are the subject of this IC review (documents 2, 16, 20, 21 and 23) are conditionally exempt under s 47C or s 47E of the FOI Act.[9] Section 11A(5) provides that, if a document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest'.

32. The documents that are conditionally exempt under s 47C contain the following deliberative matter:

  • document 2: one sentence which expresses an ACCC officer's opinion about the risks of a particular proposed course of action, and
  • document 23: material reflecting the IDC's ‘thinking processes' about the legal and practical implications of the plain packaging policy.

The documents that are conditionally exempt under s 47E contain information about a complaint made to the ACCC:

  • documents 16, 20 and 21.

Different factors apply to these documents when applying the public interest test in this IC review.

33. Section 11B(3) of the FOI Act lists factors that favour access when applying the public interest test. Two of those factors are applicable to this IC review: promoting the objects of the FOI Act and informing debate on a matter of public importance. In particular, disclosure would promote accountability and transparency in relation to the Australian Government's policy on plain packaging for tobacco products and contribute to public debate on this issue.

34. The Guidelines include a non-exhaustive list of further factors that favour disclosure.[10] Having regard to that list, I consider that there is only one further factor that favours disclosure in this IC review, and only in relation to the documents that are conditionally exempt under s 47E: disclosure would increase transparency in the ACCC's investigations.[11]

35. The Guidelines also include a non-exhaustive list of factors against disclosure.[12] Of those factors, none is relevant to the documents that are conditionally exempt under s 47C. The factors that are relevant to the documents that are conditionally exempt under s 47E are that disclosure:

  • could reasonably be expected to impede the flow of information to the police or another law enforcement or regulatory agency
  • could reasonably be expected to prejudice an agency's ability to obtain confidential information
  • could reasonably be expected to prejudice an agency's ability to obtain similar information in the future, and
  • could reasonably be expected to prejudice the management function of an agency.

This reflects the fact that, as noted above,[13] the Competition and Consumer Act establishes a framework within which the information disclosed to the ACCC by a complainant is treated confidentially.

36. In balancing these factors—for and against disclosure—I give the greatest weight in this IC review:

  • in relation to the documents that are conditionally exempt under s 47C—to the factors in favour of disclosure, noting that I have not identified any factors against disclosure, and
  • in relation to the documents that are conditionally exempt under s 47E—to the factors against disclosure, especially given the legislative framework of the Competition and Consumer Act.

37. I think that the disclosure of information relating to the complaint made to the ACCC would cause significant harm if it impeded or prejudiced the willingness of people to make complaints under competition, fair trading and consumer protection laws; and affected the ACCC's capacity to undertake investigations in relation to such complaints.

 Findings

38. Giving BATA access to the documents that I have found to be conditionally exempt under s 47C (documents 2 and 23) would not, on balance, be contrary to the public interest.

39. Giving BATA access to the documents that I have found to be conditionally exempt under s 47E (documents 16, 20 and 21) would, on balance, be contrary to the public interest. However, edited copies of those documents could be provided to BATA under s 22.

 Decision

40. Under s 55K of the FOI Act, I set aside the ACCC's decision of 8 July 2011 and decide, in substitution for that decision, that copies of the six documents that are the subject of this IC review should be provided to BATA, edited under s 22 as follows:

  • document 2: with the information that the ACCC deleted from page 3, on the basis of irrelevance, deleted
  • document 16: with page 3 edited as it was by the ACCC
  • document 20: with the final paragraph on page 6 deleted, and with page 7 edited as it was by the ACCC, and
  • document 21: with the final paragraph on page 11 deleted, and with page 12 edited as it was by the ACCC.

 

James Popple
Freedom of Information Commissioner

30 July 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 $816, 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 s 55F(2)(b).

[2] Guidelines, [6.62], quoting Re Waterford and Department of the Treasury (No 2) [1984] AATA 67, [58].

[3] Guidelines, [6.63].

[4] Guidelines, [6.68].

[5] See www.accc.gov.au.

[6] Other than Part 5-3 of the Australian Consumer Law, which is about country of origin representations.

[7] The Australian Consumer Law is set out in Schedule 2 to the Competition and Consumer Act 2010.

[8] Australian Competition and Consumer Commission/Australian Energy Regulator, Information policy: The collection, use and disclosure of information, 2008, 14, www.accc.gov.au/content/index.phtml/itemId/846791.

[9] See [23] and [30] above.

[10] Guidelines, [6.25].

[11] See also Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr 11, [32].

[12] Guidelines, [6.29].

[13] See [28] above.