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Dorling and Department of Resources, Energy and Tourism [2013] AICmr 5 (30 January 2013)

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

Summary of case details
Applicant:

Philip Dorling

Respondent: Department of Resources, Energy and Tourism
Decision date: 30 January 2013
Application number: MR12/00023
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 set aside the decision of the Department of Resources, Energy and Tourism (the Department) of 16 January 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 5 September 2011, Dr Philip Dorling, a freelance journalist, made a request to the Department for two departmental files relating to the Uranium and Thorium Controlled Ores Policy Review. Exports of uranium and thorium are subject to regulation 9 of the Customs (Prohibited Exports) Regulations 1958. The Department's website says that '[a] review of the Controlled Ores Policy commenced in 2011'.[1]
  2. On 4 November 2011, the Department provided Dr Dorling with a preliminary assessment of a charge of $2401.43.
  3. On 10 November 2011, Dr Dorling asked the Department to waive the charge under s 29(4) of the FOI Act on public interest grounds. On 12 December 2011, the Department advised Dr Dorling that it had decided not to waive or reduce the charge.
  4. On 16 December 2011, Dr Dorling applied for internal review of that decision. On 16 January 2012, the Department affirmed its decision not to waive or reduce the charge.
  5. On 17 January 2012, Dr Dorling sought IC review of this decision under s 54L of the FOI Act.
  6. On 8 May 2012, the Department provided Dr Dorling with a schedule of the documents identified to be within the scope of his request. On 9 May 2012, Dr Dorling reduced the scope of his request. In response to the amended request, the Department adjusted the charges estimate to $2158.77, but refused to waive or reduce the amended charge.
  7. Dr Dorling has not contended that the charge has been wrongly assessed, and there is no reason to doubt the accuracy of the Department's estimate. Rather, he has challenged the Department's decision not to exercise, at his request, the discretion conferred on it by s 29(4) of the FOI Act to waive or reduce the applicable charge.

 Decision under review

  1. The decision under review is the Department's decision on 16 January 2012 not to reduce or waive the charge payable.

 The discretion to reduce or not to impose 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 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. 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.

  3. 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?

  1. Dr Dorling 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?

  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'. 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]
  2. There is no presumption that the public interest test is satisfied by reason only that Dr Dorling is a journalist; it is necessary to go beyond the status of the applicant and to look at other circumstances.
  3. In his request for waiver of the charge, Dr Dorling argued generally that 'it is a matter of public record that mining and export of uranium (and other controlled ores) has long been a matter of political and public debate in Australia.' With regard to the documents in the requested files, Dr Dorling argued that it 'would clearly be in the public interest as they should place on the public record new information that relates to a matter of significant public debate and/or decision by government.' Dr Dorling argued that it would be in the public interest to release documents to show how the government reviewed the administration of export controls on controlled ores, as well as to show the range of third parties who were consulted in the review.
  4. The Department, in its decision and submissions made to the Information Commissioner, argued that Dr Dorling's request was broad and unfocused and it considered that Dr Dorling had 'sought more documents than are considered reasonably necessary to prepare an article for publication that is likely to be of general public interest.' Dr Dorling noted that '[t]he purpose of applying for access to the two files (rather than parts thereof) is to access the entirety of the Department's policy making and the range of factors at play in an area of complex public policy and administration. The public interest would be better advanced by comprehensive disclosure than a narrow focus on one element of intertwined policy or administration.' As noted above, Dr Dorling subsequently reduced the scope of his request.
  5. The Department also claimed that '[t]he Australian Government is not currently involved in any debate or discussion regarding the export of uranium, thorium or other controlled ores. Therefore, disclosure of the two files would not inform a significant public debate or policy issue under discussion within an agency'. But, the decision to be made under s 29(5)(b) is whether giving access to the documents sought is in the general public interest, or in the interest of a substantial section of the public. This is broader than the question whether there is a current debate or discussion of the issue.
  6. 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.[4] I have not examined the documents in question in this IC review. However, given their nature, I think that there is a general public interest in the release of the documents. The schedule of documents compiled by the Department reveals that they cover topics described as 'Current and likely controlled ores export permits', 'Letter regarding mineral exports containing low levels of nuclear materials (uranium and thorium)', and 'Action Brief draft: Policy proposal for mineral exports containing low levels of uranium and thorium (controlled ores)'. These documents clearly have the potential to reveal important information about how the Australian Government reviews the administration of export controls on uranium and other controlled ores, and the effectiveness of Australia's nuclear non-proliferation safeguards.
  7. I find that the giving of access to the documents requested by Dr Dorling is in the general 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.[5] 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. There are 85 documents, consisting of 380 folios, within the reduced scope of the request. The Department has identified 13 third parties that it will need to consult. It claims — and I accept — that it will take a significant amount of work to process Dr Dorling's request. In the reasons for its decision, the Department also claimed that the charge represented a conservative figure and did not accurately reflect the work that has taken place in processing the FOI request.
  3. In weighing up the public interest in the release of the documents that Dr Dorling has sought, and the amount of work that the Department will need to do 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

  1. Under s 55K of the FOI Act, I set aside the Department's decision of 16 January 2012 and decide, in substitution of that decision, to reduce the charge by 50% to $1079.39.

James Popple
Freedom of Information Commissioner

30 January 2013

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 www.ret.gov.au/resources/mining/australian_mineral_commodities/uranium/Pages/Uranium.aspx.

[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; Briggs and Department of the Treasury (No. 2) [2012] AICmr 17; McBeth and Australian Agency for International Development [2012] AICmr 24.

[4] Guidelines, [4.52].

[5] Guidelines, [4.47].