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Recent Cases: Commonwealth

Palmer Leisure Coolum Pty Ltd and The Treasury (Freedom of Information) [2022] AATA 2475 

In 2018, Mr Clive Palmer and Palmer Leisure Coolum Pty Ltd (“applicants”) made separate applications to The Treasury (“respondent”) for access to documents relating to an Australian Securities and Investment Commission (ASIC) investigation and related criminal proceedings. 

 

The respondent undertook searches to locate documents relevant to the request.  The respondent identified 22 documents that fell within the scope of the requests.  And refused access to all documents in accordance with ss 37(1)(a), 42 and 47E(d) of the Freedom of Information Act 1982 (Cth) (“FOI Act”). 

 

In September 2018, the applicants applied to the Office of the Australian Information Commissioner (“OAIC”) for review of the decisions to refuse the applicants access to the documents.  The OAIC advised the applicants of its intention to decline the requests for review under s 54W of the FOI Act on the basis that, “that the interests of the administration of the FOI Act make it desirable that the… reviewable decision be considered by the Administrative Appeals Tribunal.”

 

In December 2020, the applicants lodged two applications with the Tribunal, seeking review of the decisions of the respondent to refuse them access to the documents. 

In July 2021, following an interlocutory hearing, the applicants and the respondent reached an agreement that the 22 documents were not within the scope of the requests.

In March 2022, the applicants and the respondent consented to the Tribunal making a direction that the applications be considered and decided together.  

 

Issues

The primary issue for the Tribunal was whether the respondent took all reasonable steps to identify relevant documents to the requests and whether despite taking all reasonable steps, no documents within the scope of the requests exist or can be identified, pursuant to s 24A(1) of the FOI Act. 

 

Requests may be refused if documents cannot be found, do not exist or have not been received: s 24A

 

The Tribunal first considered the meaning of the phrase “reasonable steps” including remarks made by Deputy President Forgie in Bienstein and Attorney General (Commonwealth of Australia)[1]:

 

“…Whether all reasonable steps have been taken will be assessed having regard to such matters as the nature of documents sought in the request, whether documents of that sort are usually filed in a certain category or categories and whether documents of that sort would normally be referred to a certain Division, Branch or Section or to more than one in an agency for action.  Steps that are comprehensive and that are directed to locating documents in those places will be relevant.  Where documents are proving elusive, discussions with persons who would be likely to have dealt with the subject matter at the relevant time may be relevant… The size of the agency or of the Minister’s office may also be relevant as may evidence of any practices regarding the retention of documents, or, in the case of a Ministerial Office, the transfer of documents to the relevant Department.  Finally, there may be cases in which an examination of documents already found may reveal further areas in which relevant documents may be located.”

The respondent outlined:

  • the methodology of the searches undertaken, including the use of specific and broad search terms, and went through the search terms used;
  • that searches were undertaken on SharePoint, the Parliamentary Document Management Systems and two endorsed respondent business systems;
  • that a search was done of live Outlook folders of the respondent’s staff and archived e-mails, as well as documents that were already searched by different teams; and 
  • when the searches were undertaken.

The applicant put forward various possible search terms including words that were not contained in the requests such as ‘takeover’. The Tribunal found there was no justification to require a search term which was not mentioned in the requests. 

 

The Tribunal reviewed the evidence and determined that all reasonable steps were taken to find the documents requested by the applicants. Further, that there was no cogent evidence which established that there are other documents which should be in existence.

[1] [2005] FCA 1730, AT [48]. 

 

 

'ACC' and Australian Broadcasting Corporation (Freedom of Information) [2022] AICmr 64

ACC (“applicant”) applied to the Australian Broadcasting Corporation (“respondent”) for access to documents relating to the respondent’s decision not to acquire the applicant’s documentary for broadcast.

 

The respondent was deemed to have made a decision refusing the applicant’s request when it did not make a decision in time.  Subsequent to the applicant seeking review of the respondent’s deemed access refusal decision, the respondent made a revised decision under s 55G of the FOI Act in which it advised the applicant that it had identified three documents falling within the scope of the request and gave the applicant partial access to the documents. 

 

The respondent, in giving partial access to the documents, redacted from the documents material it considered irrelevant to the request under s 22 of the Freedom of Information Act 1982 (Cth) (“FOI Act”).

 

Issues

The sole issue for the Information Commissioner (“Commissioner”) was whether the respondent correctly decided that:

  • certain information contained in the documents sought by the applicant would reasonably be regarded as irrelevant to the applicant’s request for access; and
     
  • s 22 of the FOI Act authorised it to prepare and provide access to edited copies of the documents with that information redacted.     

 

Documents may, in some circumstances, be edited to delete irrelevant material: s 22

 

The Commissioner was satisfied that the respondent was able, and it was reasonably practicable for it, to prepare edited copies of the documents in question with information it regarded as irrelevant to the request redacted.  Further, there was nothing to suggest that the applicant would have declined access to the edited copies of the documents which the respondent prepared.

 

Therefore, the only issue to be resolved was whether the respondent correctly decided that to give access to the documents without the deletions it applied ‘would disclose information that would reasonably be regarded as irrelevant’ to the applicant’s request for access.

 

The applicant submitted:        

 

“The FOI Act concerns documents, not information. I did not request ‘those parts of the documents’.  For this reason, the entire document is within the scope of the request, ie I requested the entire document (“any documents…”).”

 

The Tribunal noted that the applicant’s request was focused on documents containing information about a specified class of complaints – being complaints to the respondent’s decision not to acquire the applicant’s documentary for broadcast – rather than complaints generally. Section 22 of the FOI Act recognises that, while an access request may relate to documents containing specified information, a document within the scope of a request may contain information which is reasonably considered irrelevant to the request and so may appropriately be deleted.

 

Having examined an unedited copy of the documents, and having regard to the focus of the applicant’s request, the Commissioner was satisfied that the material that the respondent decided to delete from the documents did not relate to the complaints made about the respondent’s decision not to acquire the applicant’s documentary.  It was accordingly open to the respondent to decide that giving access to unedited versions of the documents would disclose information that would reasonably be regarded as irrelevant to the request.