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Briggs and Department of the Treasury [2012] AICmr 5 (15 February 2012)

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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 February 2012
Application number: MR11/00174
Related IC review: Briggs and Department of Broadband, Communications and the Digital Economy [2012] AICmr 6
Catchwords: Freedom of information – Charges – Whether the giving of access to a document is in the general public interest or in the interest of a substantial section of the public – 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 set aside the decision of the Department of the Treasury (the Treasury) of 20 June 2011 and substitute my decision, under s 29(4) of the Freedom of Information Act 1982 (the FOI Act), reducing the charge by 50%.

 Background

2. On 12 May 2011, Mr Jamie Briggs MP, the federal member for Mayo, made a request under the FOI Act to the Treasury for access to:

  • all briefing material received by the Treasurer and his office regarding the Digital Switchover Household Assistance Scheme, announced on 8 May 2011; and
  • all correspondence, including emails between The Treasury and the Treasurer and his staff regarding the Digital Switchover Household Assistance Scheme, announced on 8 May 2011.

3. On 31 May 2011, the Treasury provided Mr Briggs with a preliminary assessment of a charge of $580.51, which included 15 hours of decision-making time. The Treasury advised Mr Briggs that it had identified around 26 documents that potentially fell within the scope of his request.

4. On 6 June 2011, Mr Briggs wrote to the Treasury requesting that the charge be reduced or not imposed on public interest grounds. On 20 June 2011, the Treasury decided not to reduce the charge.

5. By letter dated 21 June 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 of 20 June 2011 not to reduce or waive the charge in respect of Mr Briggs's request.

 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 of a charge cause financial hardship?

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.[2]

12. As the Guidelines explain, the issue is not whether it is in the public interest to reduce or not impose a charge, nor whether it is in the public interest for a particular applicant to be granted access to a document.[3] The question is whether there is a benefit from the release of the documents flowing more generally to the public or a substantial section of the public.[4] There is no presumption that the public interest test is satisfied by reason only that the applicant is a Member of Parliament; it is necessary to go beyond the status of the applicant and to look at other circumstances.[5]

13. As Mr Briggs points out, the Digital Switchover Household Assistance Scheme (the Scheme) has been the subject of significant public debate. It received a large amount of media coverage immediately following its announcement and subsequently.[6] Much of this media commentary questions the efficiency and cost-effectiveness of the Scheme's delivery, and whether the amount budgeted for the Scheme was appropriate. The Scheme has also been the subject of debate in Parliament,[7] and Mr Briggs asserts that the documents he has sought ‘would assist the Australian Parliament and ensure that an informed debate transpires'. Mr Briggs also argues that ‘the release of briefing material and correspondence relating to the [Scheme] would undoubtedly capture the interest of many Australians' and that there will be ‘tens of thousands of people directly affected by this program, either as recipients or contractors delivering it'.

14. The Treasury says that, in this regard, the Scheme is indistinguishable from other government programs designed to provide benefits to the Australian community, ‘all of which would be expected to elicit some degree of public interest'. This may be true but, as noted above, the question is whether there would a benefit from the release of the documents flowing to the public or a substantial section of the public. The benefit that would flow from the release of documents about one program is not diminished because there are documents about other programs whose release would have similar benefits.

15. Treasury also points out that the Government has made a significant amount of information about the Scheme publicly available, for example through its digital TV website (www.digitalready.gov.au). But that material describes the Scheme, and how eligible people can apply for assistance under it; the documents that Mr Briggs is seeking relate to the Government's decision to implement the Scheme. There is no suggestion that documents of the latter type have been made publicly available.[8]

16. The Scheme is a substantial program both in terms of its cost and its impact on a large number of individual Australians. I find that the giving of access to the documents requested is in the general public interest for the purposes of s 29(5)(b) of the FOI Act.

 Exercising the discretion

17. 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.[9] For example, it may be appropriate to impose a charge where an applicant has requested access to a substantial volume of documents and significant work would be required to process the request.[10]

18. In this case, the request is for access to approximately 26 documents – not a substantial volume. But the Treasury has identified 22 of those 26 documents as potentially being exempt under s 34 of the FOI Act (Cabinet documents). Assessing those documents, the Treasury says, will be time consuming and involve senior officers.

19. I have not examined the documents in question. However, given their nature, I accept that processing this FOI request will require the Treasury to undertake a not insignificant amount of work to consider and apply any relevant exemptions.

20. In weighing up the public interest in the release of the documents that Mr Briggs has sought, and the amount of work that will need to be completed by the Treasury 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 with the policy of the FOI Act that charges can be imposed for processing FOI requests.

 Decision

21. Under s 55K of the FOI Act, I set aside the Treasury's decision of 20 June 2011 and decide, in substitution for that decision, to reduce the charge by 50% to $290.26.

Dr James Popple
Freedom of Information Commissioner

15 February 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 (2010) [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; Fletcher and Department of Broadband, Communications and the Digital Economy [2012] AICmr 1.

[3] Guidelines [4.51].

[4] Guidelines [4.52].

[5] Guidelines [4.53].

[6] A search of an online database for Australian news articles containing the phrase ‘set-top box' and published since the announcement of the Scheme produced more than 100 results, the majority of which relate to the Scheme, for example: ‘Set-top box plan cops more flak', Hobart Mercury, 12 May 2011; ‘Set-top box switch off, rip off', The Advertiser (Adelaide), 22 May 2011; ‘Pensioners face TV repair shock: set-top box scheme "wastes $308 million"', Herald-Sun, 24 May 2011; ‘Set-top box program costs $70m in admin fees', ABC News, 16 July 2011; ‘Swan defends set-top box scheme', Australian Associated Press General News, 10 May 2011; ‘$67m set-top box farce' Daily Telegraph, 17 July 2011.

[7] See, for example, Commonwealth, Parliamentary Debates, House of Representatives, 12 May 2011, 3865; Official Committee Hansard, Environment and Communications Legislation Committee (Budget Estimates Hearing), 26 May 2011.

[8] It may be that the documents relating to the Government's decision to implement the Scheme do not have to be made publicly available. If Mr Briggs agrees to pay the charge as reduced in this IC review, then the Treasury will have to decide whether any exemptions in the FOI Act apply to the documents that he has requested (see [18]–[19] below).

[9] Guidelines [4.47].

[10] Guidelines [4.46].