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McBeth and Australian Agency for International Development [2012] AICmr 24 (20 September 2012)

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

Summary of case details
Applicant: Adam McBeth
Respondent: Australian Agency for International Development
Decision date: 20 September 2012
Application number: MR11/00287
Catchwords:

Freedom of information — Charges — Whether charge has been wrongly assessed — Whether agency should exercise discretion to reduce or not impose charge — (CTH) Freedom of Information Act 1982 ss 29(1), 29(5)(b)

  

Contents

 Summary

  1. I set aside the decision of the Australian Agency for International Development (AusAID) of 23 March 2012 and substitute my decision, under s 29 of the Freedom of Information Act 1982 (the FOI Act), reducing the charge by 50%.

 Background

  1. On 20 July 2011, Dr Adam McBeth applied to AusAID for access to specified documents. Following consultation with AusAID, Dr McBeth amended his request on 27 July 2011 so that it covered:
    • documents relating to the survey of homes to be relocated as part of the 'Rehabilitation of the Railway in Cambodia Project'
    • documents referring to the survey data or to the process of assessing compensation for relocated households, and
    • the Joint Resettlement Review Mission Memorandum of Understanding relating to the project.
  2. On 15 August 2011, AusAID provided Dr McBeth with a preliminary estimate of a charge of $1394.97. This included over 62 hours of decision-making time relating to 366 pages of documents. On 16 August 2011, Dr McBeth wrote to AusAID asking that the charge be waived under s 29(4) of the FOI Act on financial hardship and public interest grounds. Dr McBeth also contended that the estimate of more than 62 hours of decision-making time was unreasonable given the volume of material.
  3. On 2 September 2011, AusAID advised Dr McBeth that it had decided not to waive or reduce the charge. On 12 September 2011, Dr McBeth sought IC review of this decision under s 54L of the FOI Act.
  4. Following negotiations with AusAID, Dr McBeth narrowed the scope of his request to 21 documents of interest. On 23 March 2012, AusAID provided a revised estimate of the charge, including more than 82 hours of decision-making time relating to 440 pages of documents.[1] AusAID waived any charge for search, retrieval and preparation of the documents, and reduced the assessed charge by 17% to $1157.12.[2]

 Decision under review

  1. The decision under review is the Department's revised decision on 23 March 2012 to reduce the charge payable by 17% to $1157.12.

 Assessment of the amount of a charge

  1. 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 has been wrongly assessed or 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 must notify the applicant of its decision within 30 days (s 29(6)).
  2. In the course of this IC review, Dr McBeth argued that AusAID's assessment of the charge 'appears to have been set at the maximum rate permitted by the Regulations' and that '[t]he effect of charging the full amount permitted under the Regulations is to impose the maximum justifiable cost, in direct contradiction to the objective of imposing the lowest reasonable cost'. Referring to the revised assessment detailing more than 82 hours of decision-making time, Dr McBeth contended that 'more than two full-time working weeks of doing nothing else but making decisions on a small number of documents ... strikes me as highly implausible'.
  3. AusAID advised that its charges assessments were calculated according to the fee schedule in the Freedom of Information (Charges) Regulations 1982 (the Regulations). In its charges notice of 15 August 2011, AusAID provided the following breakdown of its assessment:
Breakdown of assessment of fees

Search and retrieval
($15 per hour)

12.75 hours

$191.25

Decision making
($0 for first 5 hours; $20 per hour subsequently)

62.86 hours

$1157.12

Printing
(10¢ per page)

366 pages

$36.60

Postage

Estimate of actual cost

$10.00

Total

$1394.97

 

In its revised charges notice of 23 March 2012, AusAID provided the following breakdown of its assessment:

Breakdown of revised assessment of charges

Description and rate

Estimate

Total

Search and retrieval
($15 per hour)

No charge imposed

$0

Decision making
($0 for first 5 hours; $20 per hour subsequently)

82.87 hours

$1557.47

Printing
(10¢ per page)

No charge imposed (440 pages)

$0

Postage

No charge imposed

$0

Total (this revised assessment was not used: see [11] below)

$1557.47

 
  1. AusAID advises that its FOI officers did not have physical possession of the relevant documents when they made the initial assessment of charges; the documents had been transferred from Cambodia when they made the revised assessment. This is the reason why, even though Dr McBeth narrowed the scope of his request between the two assessments, the revised assessment is based on a larger number of documents, and more decision-making time, than the first.
  2. AusAID's revised assessment of the charge was more than the original assessment, even with no component for search and retrieval or printing. Under reg 10(2) of the Regulations, an agency cannot impose a higher charge once the initial charge estimate has been sent to an applicant, unless a decision is made to release the documents in full. So, the initial assessment of the charge ($1394.97) remained the applicable charge. AusAID decided to reduce the applicable charge by 17% to $1157.12.
  3. 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. The Guidelines explain that, in exercising the discretion to impose a charge an agency should take account of the ‘lowest reasonable cost' objective, stated in the objects clause of the FOI Act (s 3(4)):

    ... functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.[3]

  4. The Guidelines also explain that a charge must not be used to discourage an applicant from exercising the right of access conferred by the FOI Act. Rather, charges should fairly reflect the work involved in providing access to documents on request.[4]
  5. AusAID advised that it had calculated both assessments using a charges calculator that estimates the time taken for search, retrieval and examination of documents, third party consultation, and preparation and notification of the decision and then calculates an estimated charge. AusAID says that the calculations 'reflect the cost of consultations with the two third-parties who own the majority of the documents and the long and careful deliberations required of the decision-maker when considering any potential exemptions in relation to these documents'.
  6. I am satisfied that the assessed charge fairly reflects the work involved in processing Dr McBeth's request. I accept that a large amount of decision-making time is required in processing this request, due to the complexity and sensitivity of the information contained in the documents and the consultations required to be undertaken. AusAID's use of the charge rates outlined in the Schedule to the Regulations does not mean it has not applied the 'lowest reasonable cost' objective in calculating the amount of the charge.
  7. I find that, consistent with s 29(1)(b), AusAID correctly assessed the amount of the charge, and explained to Dr McBeth the basis upon which that assessment was made.

 The discretion to reduce or not to impose a charge

  1. As noted above,[5] an applicant may contend, under s 29(1)(f)(ii), that a charge should be reduced or not imposed. 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)).
  2. In deciding whether to exercise the broad discretion in s 29(4), a decision maker may consider any relevant matter.[6] 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?

  1. In Dr McBeth's objection to AusAID's initial charges notice, he requested that the charge be reduced or waived, as '[a] fee of that magnitude would cause [him] financial hardship'. In correspondence with this office, Dr McBeth advised that he was 'prepared to withdraw the financial hardship claim'. Accordingly, I will not consider this issue further.

 Is giving access to the document in the public interest?

  1. 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'. 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.[7]
  2. 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.[8] 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 AusAID to undertake significant work. The request requires consultation with a number of third parties, including foreign governments and organisations, and assessing potential exemptions is likely to be complex.
  3. The documents requested relate to a railway rehabilitation project in Cambodia that is jointly funded by AusAID and managed by the Asian Development Bank (the ADB) in partnership with the Cambodian government. 'Australia is providing approximately AU$26 million through the ADB amounting to 15 per cent of the US$143 million Rail Rehabilitation Project.'[9]
  4. Dr McBeth is an academic at Monash University. He says that his FOI request relates to research he is conducting that aims 'to compare the processes and practices in place in aid/development projects in which entities with strong oversight mechanisms and policies are involved-such as AusAID and the ADB-with projects funded from emerging economies that typically lack such mechanisms'. Dr McBeth contends that ‘[t]he public interest in examining the manner in which such projects are conducted is substantial, particularly now that aid projects are increasingly funded by governments and other entities from emerging economies'. In addition, he says, the documents relate to a matter of public interest as disclosure would provide ‘transparency in aid funding and the manner in which Australian-funded aid projects are carried out'. Dr McBeth adds that ‘[t]he findings of this research will be published and available to anyone who seeks it'.
  5. The railway rehabilitation project in Cambodia is a significant aid project, which involves the expenditure of large amounts of Australian Government money. AusAID did not dispute Dr McBeth's claim that giving access to the documents requested would be in the general public interest or in the interest of a substantial section of the public. I agree, and I find that the giving of access to the documents requested by Dr McBeth is in the public interest for the purposes of s 29(5)(b) of the FOI Act.

 Exercising the discretion

  1. 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.[10] 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.
  2. When making a decision under s 29(4), a decision maker must balance any public interest in giving access to the documents against a possible reduction in the charge payable. AusAID reduced the charge payable by 17%. In submissions to the Office of the Australian Information Commissioner, AusAID explained that it had not further reduced the charge because:

    The applicant is most interested in the resettlement of Cambodian nationals affected by this project. This aspect is managed by the Cambodian Government. The majority of documents in AusAID's possession relating to Dr McBeth's request, therefore, were authored by either the ADB or the Cambodian Government. Those documents which are authored by AusAID refer extensively to documents authored by either ADB or the Cambodian Government.

    ...

    The applicant has freely acknowledged that this is not a well-targeted request, that he did not believe that AusAID's role in the program was relevant to his area of interest and that he is seeking access to documents through AusAID because he doesn't believe he will be able to obtain them from the organisations which authored them. While the [FOI] Act doesn't preclude the applicant from doing this, having regard for the objects of the Act, which are intended to promote increased scrutiny, discussion and review of government activities, it is difficult to see how the public interest would be served by using government resources to provide, at a reduced cost, documents which relate to a third party's activities.

  3. I do not agree with AusAID's assessment of the public interest in this case. As noted above, Australia is providing approximately $26 million to the railway rehabilitation project. Documents about the project — including documents authored by third parties — have the potential to improve transparency in government expenditure on international aid. Additionally, the question of the relocation of local citizens as part of the rehabilitation program has been an issue of recent media attention and controversy, in Australia and in Cambodia.[11] I note, also, that Dr McBeth anticipates that the research will be published to the public at large. The Guidelines explain that, in circumstances where documents are to be used in research that is to be published widely, it may be thought appropriate to reduce or waive a charge.[12]
  4. In balancing these factors with the amount of work that AusAID will need to do in processing this request, I believe that the 17% reduction that AusAID decided upon is not sufficient. I believe that it is appropriate to reduce the charge applicable in this case by 50%. This balances the public interest issues with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 Decision

  1. Under s 55K of the FOI Act, I set aside AusAID's revised decision of 23 March 2012 (to reduce the charge by 17%) and decide, in substitution for that decision, to reduce the charge by 50% to $697.49.

James Popple
Freedom of Information Commissioner

20 September 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] Even though Dr McBeth narrowed the scope of his request between the two assessments, the revised assessment is based on a larger number of documents, and more decision-making time, than the first: see [10] below.

[2] Under s 55G of the FOI Act, an agency or minister may vary an access refusal decision at any time during an IC review in specified circumstances, including if the revised decision would have the effect of 'relieving the IC review applicant from liability to pay a charge' (s 55G(1)(b)). AusAID's decision to reduce the charge relieved Dr McBeth from liability to pay part of the originally assessed charge and, hence, s 55G applied.

[3] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, [4.2].

[4] Guidelines, [4.3].

[5] See [7] above.

[6] Guidelines, [4.45].

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

[8] Guidelines, [4.52].

[9] AusAID, The Railway Rehabilitation Project in Cambodia, February 2012, www.ausaid.gov.au/Publications/Documents/cambodia-railway-rehabilitation-factsheet.pdf.

[10] Guidelines, [4.47].

[11] See for example 'Beyond aid numbers: accountability for human rights abuses', The Conversation, 11 May 2012, http://theconversation.edu.au/beyond-aid-numbers-accountability-for-human-rights-abuses-6396; ‘Cambodian rail line to displace country's poor', Lateline, 13 May 2011, www.abc.net.au/lateline/content/2011/s3216781.htm; ‘Railway evictees step up fight', The Phnom Penh Post, 9 April 2012, www.phnompenhpost.com/index.php/2012040955504/National-news/railway-evictees-step-up-fight.html.

[12] Guidelines, [4.55].