The Federal Court decision in Collection Point Pty Ltd v
Commissioner of Taxation provides guidance for Commonwealth
agencies about meeting their obligations under the Freedom of
Information Act 1982 (Cth) (FOI Act) when dealing with data
contained on their computer systems. The request for access, in
this case, was to written documents that didn't exist. To
create those documents the agency would have to create a computer
program to extract the material. The Court held that this meant
that a computer was not "ordinarily available" to collate
or retrieve the information and, therefore, the document did not
need to be produced.
Marshall J heard an appeal from a decision of the Administrative
Appeals Tribunal affirming a decision of the ATO to refuse access
to material sought by Collection Point under the FOI Act. Although
the matter was determined under the pre-reform FOI Act, the terms
of the relevant provision is similar in the current FOI Act.
Collection Point requested access to the names and addresses of
each person on a register listing unclaimed superannuation
maintained by the ATO. The ATO refused on the basis that no such
document existed in discrete written form and the ATO couldn't
produce this document using the computer ordinarily available to
it. A new computer program would need to be written to comply with
the request, at a cost of approximately $7,000 and one week's
"Ordinarily available" argument
There was no dispute that the ATO needed a new computer program
to provide the material. The parties disagreed on the correct
interpretation of the provision requiring an agency to produce a
written document through the use of a computer or other equipment
that is ordinarily available to the agency for retrieving or
collating stored information (s 17(1)(c)(i) of the FOI Act).
Collection Point submitted that the phrase "ordinarily
available" means that the agency has access to the computer
required to produce a document. On this interpretation, there would
be no dispute and therefore it would be required to produce the
Before the Tribunal
The Tribunal rejected Collection Point's interpretation. It
found that, in these circumstances, the computer that would have to
be used to produce the document sought could not be said to be
"ordinarily available", given the need to write a new
program to extract the material. However, the Tribunal left open
the question of whether the nonexistence of a program would always
mean that the computer is not "ordinarily available",
noting that this may turn on the time or cost of producing the
Before the Federal Court
Collection Point argued that the Tribunal had erred in its
interpretation. It argued, as it had before the Tribunal, that
"ordinarily available" was restricted to the availability
of relevant computer hardware.
Similarly to the Tribunal, the Court found that requiring an
agency to write a new computer program to produce a document means
that the computer would not be "ordinarily available";
rather, that it would mean "an extraordinary step is required
to be taken".
Implications for agencies
This case is significant for its clear statement on the meaning
of "ordinarily available". The practical implication of
the Court's interpretation is that there are limits on what
agencies will be required to do to discharge their obligations
under s 17 of the FOI Act.
Agencies must make each decision on its own merits and should be
mindful to note the Tribunal's qualification that it is not
necessarily the case that the absence of a relevant computer
program will mean that a computer is not "ordinarily
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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