Australia: When Does The Public Interest Require FOI Fees To Be Waived?

[ganpat1956]

13 September 2007
Article by Caroline Bush

In Re Stephanie Peatling and Department of Employment and Workplace Relations [2007] AATA 1011, the Administrative Appeals Tribunal considered whether the fees for processing a media outlet's request for documents under the Freedom of Information Act 1982 (Cth) should be reduced on the grounds of public interest. The Tribunal decided that even though there were considerable public interest grounds to support a waiver of the fees, the countervailing "commercial benefit" that a media outlet would derive from the release of the documents outweighed the public interest in the release of the relevant documents.

The facts

Ms Peatling, in her capacity as a reporter for the Sydney Morning Herald ("SMH"), lodged an application with the Department of Employment and Workplace Relations for access to documents used by the Department in formulating the Government's "Welfare-to-Work" policy. As part of her request, Ms Peatling asked that any charges be halved "for the public interest".

The Department advised Ms Peatling that she was not entitled to a reduction of fees, as it concluded that there was no evidence that the documents would be made available to the public and therefore she had not shown how the provision of the documents in question would benefit the public. The Department also found that the payment of the fee would not cause financial hardship to the SMH.

Following an unsuccessful internal review of the decision Ms Peatling lodged an application with the Tribunal for a review of the internal review decision.

The Legislative framework

The issue for the Tribunal was whether the charges should have been reduced under section 29(5) of the Act.




Section 29(5) of the Act says:

"(5) Without limiting the matters the agency or Minister may take into account in determining whether or not to reduce or not impose the charge, the agency or Minister must take into account:

• whether the payment of the charge, or part of it, would cause financial hardship to the applicant, or to a person on whose behalf the application was made; and

• whether the giving of access to the document in question is in the general public interest or interest of a substantial section of the public".

A memorandum prepared by the Attorney General's Department, the Freedom of Information Memorandum No.29, offers guidance in relation to section 29(5) of the Act. In relation to the issue of "financial hardship", the Memorandum states that financial hardship means more than an applicant having to meet a charge from his or her own resources. On the issue of "public interest", the Memorandum sets out a two-part test. The first question is whether the benefit of the release of the information will flow to the public at large and the second question is whether making the information more widely available would benefit the public.

The Memorandum also provides that "[i]f an agency concludes that giving access would be in the public interest in a particular case, it should grant full remission of fees or not impose any charges in the absence of any other relevant countervailing factor". The Memorandum lists a number of examples of relevant countervailing considerations, including "where the applicant could reasonably be expected to obtain a commercial or other benefit from disclosure".

The Tribunal's decision

The Tribunal was ultimately satisfied that countervailing considerations outweighed the public interest in releasing the documents and that the decision under review should be affirmed. The Tribunal reached six key conclusions in the process of making this decision.

First, the Department argued that a majority of the documents contained confidential information (many were Cabinet-in-Confidence) and would be exempt from release. The Tribunal, however, found that even if only a handful of the documents could be released, this should not disentitle an applicant to a reduction in fees on public interest grounds.

Second, there was an issue as to whether documents would come to the attention of the public. However, evidence was given that any documents released would be posted online by SMH and the Tribunal was ultimately satisfied that the documents, if released, would come to the public's attention.

Third, the Department argued that the release of the information was not in the public interest as the information was potentially confusing as it did not represent broader economic effects which may occur as a result of the reform. However, the Tribunal found that the fact that information was potentially misleading and confusing does not make its release contrary to the public interest.

Fourth, the Department also argued that some of the documents in question had been superseded. Seeking guidance again from the decision in McKinnon, the Tribunal found that the release of superseded documents would not make a valuable contribution to the public debate and could undermine the public integrity of the government's decision making process.

Fifth, the Department argued that the information in many of the documents contained highly sensitive economic data which, if released, could cause persons or organisations to distort their behaviour. The Tribunal however, determined that the Department had not made out this assertion. In particular, it had not given examples of the kinds of behavioural changes that could occur or shown why those changes would be detrimental.

This left only the issue of "countervailing considerations" to be resolved. The Tribunal concluded that although the SMH would not necessarily derive a direct commercial benefit from disclosure, the FOI request was made within the ordinary course of the SMH's publishing business. The applicant was seeking the documents for the purposes of the SMH's business as a newspaper and the SMH intended to publish articles derived from the information. In this sense, the SMH would derive some benefit from the release of the information. The Tribunal considered it relevant, in this context, that there was no evidence that the SMH would not proceed with the request unless the charges were reduced.

The Tribunal decided that these countervailing considerations outweighed the public interest values in section 29(5)(b) and that the decision under review should be affirmed

Implications

Although a media-specific case, the decision in Peatling has broader implications for Government agencies in terms of the way they consider applications for the waiver of fees and charges for FOI requests.

While the question of public interest under section 29(5) of the Act requires an assessment of whether:

• the release will flow to the public; and

• the release would actually be something of benefit to the public;

the assessment of these two factors requires a balancing of various considerations and ultimately, countervailing considerations, such as the commercial benefit that an applicant may derive from the release of documents, may outweigh the public interest and negate the need to waive fees.

Clayton Utz - Australia - When Does The Public Interest Require FOI Fees To Be Waived? (13/09/2007 13:07:05) from Mondaq