the solution

Recent Cases: Commonwealth

Morgan and Australian Building and Construction Commissioner [2020] AATA 651 (18 March 2020)

The (predecessor of the) Australian Building and Construction Commission (“Respondent”) commenced investigations into allegations that Linkhill Pty Ltd (“Linkhill”) had breached various provisions in the Workplace Relations Act 2006 (“WR Act”) and the Fair Work Act 2009 (“FW Act”).  The investigations resulted in the Respondent commencing litigation against Linkhill in the then Federal Magistrates’ Court, and successfully obtained civil penalties for contravening provisions in the WR Act.  Linkhill’s appeal to the Full Court of the Federal Court was unsuccessful, as was its application to the High Court for special leave to appeal from the judgement of the Full Court.      

 

The Applicant, a director of Linkhill, made three FOI requests connected with the actions taken by the Respondent in relation to Linkhill and the resulting litigation. 

 

The Respondent refused this request under s 24(1) of the Freedom of Information Act 1982 (Cth) (“FOI Act”) on the basis that a practical refusal reason existed such as to allow the Respondent to refuse access to documents sought.  Section 24AA(1)(a)(i) of the FOI Act specifies that for the purpose of s 24, a “practical refusal reason” existed in relation to a request if the work involved in processing the request would subsequently and unreasonably divert the resources of the agency from its other operations.

 

On review, the Respondent’s decision was affirmed by the Australian Information Commissioner (“AIC”).  

 

Onus

In bringing the case before the Australian Administrative Tribunal (“Tribunal”), the Respondent had the onus of establishing that its decision was justified.  It carried the same onus before the AIC.

 

Operation of the FOI Act

The Tribunal confirmed that the right of access granted by the FOI Act is qualified by the terms of the FOI Act itself, and that there is no right of access to exempt documents.  In addition, the FOI Act provided exceptions which allowed an agency not to have to process a validly made request, for instance, where to do so would substantially and unreasonably divert an agency's resources under s 24AA(1)(a)(i). 

 

Consultation under s 24AB is a pre-requisite to refusing access under s 24(1)

Section 24(1)(a) requires a request consultation process – complying with the requirements of s 24AB – be undertaken before a decision may be made to refuse access under s 24(1) of the FOI Act.  The Tribunal was satisfied that the Respondent complied with the required consultation process.

 

Operation of s 24AA(1)(a)(i)

The question the Tribunal had to next determine was whether the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations. 

 

The Tribunal confirmed that the words “substantially” and “unreasonably” in the context of s 24AA(1)(a) have their “ordinary meanings” such as defined by the dictionary.  That is, in the case of “substantial”, “considerable in amount, extent, importance, etc.” and in the case of “unreasonable”, “immoderate; beyond what is reasonable or fair.” 

 

In that sense, the Tribunal said the question it had to determine in s 24AA could be phrased as “would the work involved in processing the request be considerable having regard to all the steps that must be taken to do so and would it be beyond what is reasonable or fair having regard to the objects underpinning the FOI Act under which that request is made and its other operations?”   

 

Substantial diversion

On the facts and evidence before the Tribunal, it noted that the work involved in processing the request would include:

  • searching archived emails which would have to be commenced by a request made to another government agency responsible for accessing, searching for and providing possibly relevant documents to the Respondent, which would then have to search the results for actually relevant documents;
  • consulting with a large number of external individuals and previous employees no longer working at the Responding agency, including sending formal correspondence and responding to enquiries received in response to consultations;
  • obtaining documents from and consulting with 4 lawyers of Clayton Utz who had been involved in conducting the litigation against Linkhill, and in any case many of them would be subject to legal professional privilege, which had not been waived by the Respondent;
  • the fact that although the Applicant had excluded four categories of documents, the practical effect of those exclusions meant that they had very little impact on the work involved to identify and collate the relevant documents, if at all.  For example, the Tribunal noted that despite a common belief that information technology could “do anything”, it accepted that the Respondent’s searches could not be made with sufficient particularity required to identify, for example, the categories of documents excluded by the Applicant from his request.  The result was therefore that the Respondent would be required to devote staff’s time to reviewing those documents for relevance to the request.
  • Finally, the Tribunal rejected the Applicant’s submission that the Respondent could not claim not to have the internal resources to process his request, given that the Respondent had, at the time, a $75 million annual budget.  The Tribunal noted that this budget was to cover all of the Respondent’s considerable operations, including being the primary regulator for regulating building industry participants, including to investigate, monitor and promote compliance with various legislation including specified workplace laws and industrial instruments.  Complying with the FOI Act made up only a part of its significant other functions and work.

On that basis, the Tribunal concluded that the work involved in processing the request would require the Respondent to substantially divert its resources from its other operations. 

 

Unreasonable diversion

In considering whether the work involved in processing the request would unreasonably divert the Respondent’s resources from its other operations, the Tribunal rejected the Applicant’s submission that the Respondent ought to have brought before the Federal Magistrates’ Court facts the Applicant alleged were relevant to the proceedings.  The Tribunal noted that the Respondent was not obliged to have done so, given the Applicant could have brought its own evidence during those proceedings, and there was a public interest in preserving the finality of those proceedings, especially considering Linkhill had exhausted its avenues of appeal. 

 

The release of the documents cannot be said to outweigh the diversion of the Respondent’s resources because the work of the Respondent itself is in the public interest.   Additionally, the litigation against Linkhill regarding the payment of workers was in the public interest, not for private gain of the Respondent.

 

Finally, the Tribunal considered whether the work involved in processing the request would be an unreasonable diversion to resources given the objects of the FOI Act to maximise information available to the public leading to increased accountability.  The Tribunal noted that ss 24 and 24AA required “at the heart” a balancing exercise between the public interest in maximising access versus ensuring that government may function effectively and efficiently.

 

Section 24(1) gives discretion to the decision-maker to refuse

The Tribunal noted that the wording of s 24(1) gave discretion to an agency such that having satisfied the consultation requirements, and even if a practical reason described in the FOI Act did exist, the decision-maker could still decide not to refuse access under s 24(1).  Therefore, the Tribunal noted, there was nothing to be gained by considering previous decisions made by the agency to have

'RT' and Australian Taxation Office (Freedom of Information) [2020] AICmr 8 (26 February 2020)

The applicant originally applied to the Australian Taxation Office ("ATO") for access to Microsoft Outlook calendar invitations sent by two ATO officers in a particular timeframe.  The ATO made a decision to refuse the applicant's request on the basis that the documents could not be found or do not exist.

 

The applicant sought review of that decision under s 54L of the FOI Act, later advising the Australian Information Commissioner (“AIC”) that it only sought review of the ATO’s decision in relation to the searches conducted with respect to the records of one of the ATO officers, who was no longer employed by ATO at the time of the FOI request.  The ATO submitted to the AIC that any documents for that ATO officer for the requested time period, if they existed, would be stored on backup tapes at an offsite location. 

 

Whether reasonable steps taken to find documents (s 24A)

The main issue was whether the ATO had taken all reasonable steps to find the documents requested before refusing access.  “All reasonable steps” requires a flexible and commonsense interpretation of the terms of the request.

 

The ATO gave evidence that officers’ files are retained by the ATO’s servers for a limited period of time and primarily operate as a backup for files; specific documents are not available to be quickly identified and restored.  Searching for the document would take specialist IT knowledge and skills, and conducting those searches would unreasonably divert the ATO’s resources from its other operations.  Evidence was given on the restoration process and the cost.

 

The AIC was satisfied that the ATO had taken all reasonable steps to identify the documents within the scope of the applicant’s request and decided it would be going beyond what would be considered ‘reasonable steps’ in this circumstance to conduct a search of the ATO’s backup tapes at considerable expense.

 

HELD

The AIC affirmed the decision of the ATO and denied access to the documents on the basis that, despite all reasonable steps having been taken to identify the documents, they either do not exist or cannot be found.