Australia: Waiver Of Fees: When Does Public Interest Favour Waiver?

Key Point

• A recent case takes a fresh look at the circumstances in which waiver of fees will be in the public interest.

In Re Alex Encel and Secretary, Department of Broadband, Communications and the Digital Economy [2008] AATA 72, the Administrative Appeals Tribunal ("AAT") considered whether the fees for processing an application for access to documents under the Freedom of Information Act ("FOI Act") should be waived or reduced on the grounds of public interest. The AAT found that the availability of the documents and the debate that their disclosure would generate were in the public interest and that the processing charge should be waived.

The facts

Mr Encel, a retailer of televisions and sound systems as well as a commentator on matters such as the introduction of digital television in Australia, made a request under the FOI Act to the Department of Broadband, Communications and the Digital Economy. Mr Encel requested information regarding government expenditure incurred in supporting digital television on the one hand as against analogue television on the other, including the projected costs of supporting both analogue and digital television until the closedown of analogue television.

The Department determined that a $30 application fee as well as a charge of $630.11 payable by Mr Encel for processing his request on the basis of the time taken to identify, search for, retrieve and photocopy the relevant documents. Mr Encel paid the application fee but requested that, pursuant to section 29(4) of the FOI Act, the Department reduce the charge on the basis that the disclosure of the documents he had requested was in the general public interest.

The basis of his argument on the general public interest was that the documents sought concerned the expenditure of a substantial amount of Government money that may prove unnecessary and they also revealed the potential realisable value of a public asset under Government management. Mr Encel also noted that following the publication of an article by him regarding digital and analogue television, he and the ABC program that had broadcast his opinions, had received comments from the public by phone, email and letters expressing interest in the subject.

The Department refused to reduce or waive the charge and subsequently, Mr Encel brought proceedings in the AAT to have the decision to impose the charge set aside.

Deputy President (DP) Forgie of the AAT decided that the charge should be waived. In her reasons for decision, she stated that:

"Given my earlier conclusion that the subject of digital television and its introduction into Australia is one that is very much a matter of public interest, I have concluded that, apart from the explanatory memorandum [which was in the public domain], the processing of the request and any provision of access to the documents as a result of that processing is in the interest of the general public or of a substantial section of the public."

The legislative framework

Under section 29(1) of the FOI Act, an Agency or Minister can decide that an applicant is liable to pay a charge in respect of a request for access to a document. However, under section 29(4), "where the applicant has notified the agency or Minister... 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 imposed."

Section 29(5) of the FOI Act sets out the considerations that the Agency or Minister may take into account. It states:

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

The Tribunal's decision

In reaching her decision, DP Forgie had regard to the following matters.

First, section 29(5)(b) of the FOI Act is concerned with whether the "giving of access" is in the public interest and not with whether the granting of waiver of the charge is in the public interest.

Secondly, section 29(5) does not require the decision-maker or the AAT to decide whether access will be given before a decision is made to estimate the charges under the Regulations. In addition, it does not authorise the decision-maker or the Tribunal to consider whether access should be given.

In taking this view, DP Forgie distinguished the approach taken by DP Walker in Re Stephanie Peatling and Department of Employment and Workplace Relations [2007] AATA 1011 when considering the application of section 29(4) to that case. In that case, the AAT refused an application by Ms Peatling, a journalist employed by the Sydney Morning Herald, to waive or reduce the processing charge for access to documents relating to the Federal Government's "Welfare-to-Work" package (we looked at it here).

In Peatling, in considering the question regarding the public interest, DP Walker had addressed matters such as whether the information in the documents was potentially misleading or confusing, whether material parts of the information had been overtaken by events and were out of date and whether the information, if released could cause persons or organisations to distort their behaviour with potentially adverse impacts on personal, company or broader economic performance.

DP Forgie found that the matters identified by DP Walker in Peatling as relevant to the issue of public interest were very difficult to determine when the documents were not before the Tribunal as a decision on the request would not have been made and was not being reviewed. DP Forgie found that the matters identified in Peatling and referred to above were more appropriate to be addressed in the context of decisions as to whether access should be given to documents rather than whether a charge should be reduced or not imposed.

Thirdly, section 29(5)(b) requires a decision-maker or the Tribunal to take into account whether the giving of access to the document is in the general public interest or in the interest of a substantial section of the public. That requirement does not equate with a requirement that the documents will come to the attention of the public. It is the "giving of access" and the consequences of that giving of access that is relevant under that provision. The consequence that is sought from the giving of access is that it is in the public interest.

Fourthly, pursuant to section 29(5) of the FOI Act, it is not necessary that both elements of section 29(5) of the FOI Act, namely financial hardship and public interest, be satisfied in order for a charge to be reduced or waived. Satisfaction of one of the elements may be sufficient for a decision-maker to reduce or waive a charge.

In coming to this view, DP Forgie disagreed with the reasoning of Senior Member Kelly in Re Australian Privacy Foundation and Attorney-General's Department. In that matter, Senior Member Kelly had decided that the processing fee should be charged on the basis that even if it was assumed that access to the documents by the applicant would be in the general public interest or in the interest of a substantial section of the public, she was satisfied that the imposition of the charge on the applicant would not cause it financial hardship and that the processing fee should be charged.

DP Forgie, in her decision, emphasised that a consideration of whether to reduce or not to impose charges is not the occasion for a consideration of whether the documents sought by the applicant should be released or whether they can properly be the subject of a claim for exemption under Pt IV of the FOI Act. However, similar to the decision in Peatling, DP Forgie did undertake the balancing of various factors when considering the exercise of her discretion as provided by section 29(4). DP Forgie referred to the prima facie position established by section 29 of the FOI Act that applicants should contribute to the cost of processing their FOI requests and found that neither the public interest nor any other consideration that is relevant in the FOI Act required that Mr Encel be given, without any charge, documents that were readily available in the public domain.

Implications

The decision in Encel raises questions as to the extent to which a decision-maker or the Tribunal should look to the nature and content of the documents to which access is being sought, when considering whether to reduce or not to impose charges for the processing of an FOI application. DP Forgie found that the release of the documents being sought in this case would be in the public interest as release would provide the public interest with "sufficient and appropriate information to facilitate the public's ability to discuss, review and criticise government action" and that as such, the processing charge should not be imposed.

However, it is likely, as it was in Peatling, that questions will arise whether the documents being sought under the FOI Act contain sufficient and appropriate information about government action, disclosure of which would be in the general public interest or in the interest of a substantial section of the public. Such questions may very well require a decision-maker or the Tribunal to consider matters such as whether the relevant documents are potentially misleading or confusing and have been overtaken by events and are out-of-date.

In the end, the difference in the decision in Encel and Peatling could be considered to come down to the fact that in Peatling, it was found that there were countervailing considerations favouring the imposition of the processing charge which outweighed the public interest in the giving of access to the documents in that case. In particular, the fact that the FOI applicant was employed by a large news organisation that sought access to the documents in the ordinary course of its business and the lack of evidence that it would not proceed with the request if the charge was not waived or reduced ultimately proved decisive.

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.