Australia: FOI Case Notes - FYI

Last Updated: 17 September 2007
Article by Caroline Bush and Alice Linacre

Australian Postal Corporation v Johnston [2007] FCA 386

On 26 March 2007, the Federal Court set aside a decision of the Administrative Appeals Tribunal and substituted a decision that Australia Post was exempt from the operation of the Freedom of Information Act 1982 (Cth) in respect of a document described as a list of licensed post offices maintained by Australia Post.

Australia Post had denied Mr Johnston access to the list on the basis that it was a document in respect of Australia Post's commercial activities. Under Part II of Schedule 2, Australia Post is specified as a body that is exempt from the operation of the Act in respect of documents relating to its commercial activities. Section 7(4) provides that such documents are documents that are received or brought into existence, in the course of, or for the purposes of, the carrying on of activities by an agency on a commercial basis in competition with persons other than governments or authorities of governments.

The Tribunal had allowed partial release of the list on the basis that the list was brought into existence to serve a dual function. Australia Post has a non-commercial reserved right to provide certain services such as carrying letters within Australia and the exclusive right to issue postage stamps. Australia Post however also carries out other commercial services in competition with other providers that are not directly reliant on their statutory role. The Tribunal found that the list contained information about both functions and therefore only those purely commercial aspects could be exempt.

The Federal Court held that as the list was brought into existence for the substantial and operative purpose of Australia Post carrying on commercial activities it was exempt from application of the Act.

Notably, the Federal Court held that the Tribunal's approach to the information contained in the list was incorrect. The correct approach was to determine if the list was brought into existence for the purposes of Australia Post's commercial activities. The Court considered the approach taken by the High Court in Mikasa (NSW)Pty Ltd v Festival Stores (1972) 127 CLR 617 and National Mutual Life Association of Australia Ltd v The Commissioner of Taxation (1970) 122 CLR 13 and applied the test of asking what the substantial purpose of the document was, holding that it did not need to be the sole purpose.

Rana v Australian Federal Police [2006] FCAFC 169

On 27 November 2006, the Full Federal Court affirmed a Federal Court decision which had affirmed an earlier Administrative Appeals Tribunal decision that reasonable steps had been taken to locate documents.

Mr Rana sought documents under the Freedom of Information Act 1982 (Cth) that had initially been given to him by the Queensland Police and that he had passed on to the Australian Federal Police ("AFP").

Mr Rana claimed that the AFP had failed to take all reasonable steps to locate the requested documents in certain electronic databases. It was held in the Federal Court that because the AFP had a right of access to the database, the documents in that database were in the constructive possession of the AFP. Mr Rana claimed that the AFP had not included in their searches other electronic databases that were in their constructive possession. The review officer gave evidence before the Tribunal that there had been a number of searches done over time and on each occasion searches were done of their computer records, manual records and archival records.

The Full Court held that the matters sought to be appealed were actually issues of fact and referred to the primary judge's approach that, following Chu v Telstra Corporation Ltd (2005) 147 FCR 505, the question of whether all reasonable steps had been taken for the purposes of section 24A of the Act was not a jurisdictional fact. The Court also held that the Tribunal's decision, that all reasonable steps had been taken, was open to it on the evidence.

Australian Capital Territory (Chief Minister's Department) v Coe [2007] ACTSC 15

On 7 March 2007, the Supreme Court of the Australian Capital Territory upheld the decision of the Administrative Appeals Tribunal to set aside a Departmental decision that a request for documents did not have to be complied with (by virtue of section 23).

Ms Coe applied for access to "all documents relating to native title in the ACT including, either direct or indirect and funding (in relation to native title in the ACT)". The decision-maker refused the request under section 23 of the Freedom of Information Act 1989 (ACT). Section 23 permits access to be refused where the work involved in giving access to all the documents would unreasonably divert resources or interfere substantially with the performance of agency operations. The Tribunal received evidence that 143 files had been identified. These files were in a number of locations. About 100 were stored with an independent contractor who would charge about $700 a file to retrieve them and the remainder were stored with ACT Record services who would charge about $150 a file for retrieval. This process, of searching and retrieving the files, would also take a junior officer about 20 hours.

There was further evidence that to examine the documents and make decisions in relation to their release would require about 2,530 working hours for a senior officer or the equivalent of 233 full-time working days. In addition, about 144 days of full-time work would be required from a junior officer as support.

The Court distinguished the wording of section 23 of the Act ( which uses the phrase "the work involved in giving access to all the documents") from the wording used in the Freedom of Information Act 1982 (Cth) (section 24, which specifies a consideration of "the work involved in processing the request"). The Court held that a comparison of these two sections affirmed the Tribunal's view that section 23 of the Act did not allow, in assessing the work involved in giving access, a consideration of the decision-making hours that would be consumed in processing the request and was limited to a consideration of work involved in the retrieval process. The Commonwealth Act had been amended in order to widen its scope to encompass a consideration of both the retrieval and decision-making process. That the ACT Act had not undergone such amendment indicated to the court that the narrower interpretation was intended to apply.

A Bill to amend section 23, so that it falls in line with section 24 of the Commonwealth Act, was introduced to the ACT Legislative Assembly on 23 November 2006 and came into effect on 12 April 2007. The new section 23 adds a list of factors which the agency or Minister must take into account including both the review of documents and decision-making processes.

Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11

On 13 February 2007, the Supreme Court of Victoria held that a decision of the Victorian Commercial and Administrative Tribunal to grant access to a document be set aside and the matter remitted to the Tribunal for further consideration.

The respondent had sought access to a document titled "Mitcham-Frankston Freeway Project - Final Public Sector Comparator Report". The document had been created pursuant to a policy of the Victorian Government called "Partnerships Victoria". The comparator report was intended to assist in determining the financial implications of outsourcing a particular project. The comparator report was also then intended to be used to assess private sector bids if it was determined that the appropriate course was to outsource the project.

The Department of Treasury and Finance refused to release the report claiming that it was exempt as a document that had been prepared for submission to Cabinet for briefing and consideration, under section 28 of the Freedom of Information 1982 (Vic).

The Court noted that there could be said to be more than one purpose for the creation of a document and that what was important was whether preparation for submission to Cabinet was the substantial purpose for bringing the document into existence. The Court stated that "as long as a purpose meeting the statutory description was causative in the sense that, but for its presence, the power would not have been exercised, it need not have been the sole purpose for the preparation of the document in question". The Court further held that in the absence of direct evidence, the use to which a document is put may determine the purpose for which it was prepared.

Ultimately, the Court held that the Tribunal had not set out the evidence upon which it based its reasons for finding that the documents were not exempt. It was on this basis that the decision was remitted.

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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