Recent Cases: Commonwealth
Australian Conservation Foundation and Secretary, Department of Agriculture, Water and the Environment (Freedom of Information) [2021] AATA 4619 (14 December 2021)
The Australian Conservation Foundation (“applicant”) sought review of a decision of the Department of Agriculture, Water and the Environment (“Department”) in respect to various documents, to which the applicant had been refused access under the Freedom of Information Act 1982 (Cth) (“FOI Act”).
On 15 June 2020, the Information Commissioner finalised the review decision, essentially declining to conduct a review of the Department’s decision under s 54W(b) of the FOI Act, which led to this review decision.
Exemption relating to material obtained in confidence: s 45(1) FOI Act
Under s 45(1) of the FOI Act, the Tribunal considered whether the contents of the document were communicated and received on the basis of a mutual understanding of confidentiality between the Department and a third party, and whether its disclosure now would found an action for breach of confidence. The Department’s evidence of its practices around the time of the document’s creation and the Department’s approach to confidentiality established that the elements of a breach of confidence would be met and an action for breach of confidence was established. The document was therefore exempt. The public interest test under s 11B is not required for the s 45(1) exemption.
Agency Operations-Conditional Exemption: s 47E(d)
Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure under the Act would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
The Tribunal confirmed that to determine whether a substantial adverse effect would be expected, a definite expectation of such an effect is not required. The Tribunal must have logical and probative materials before it which reasonably permits an inference that there is a possibility (would) or possibility (could) of the risk resulting from the disclosure.
The documents consisted of notes, documents and correspondences between the Department and third parties (including States) to facilitate a referral process under legislation, regarding an application process and records of decision-making processes.
The Tribunal was satisfied that it was reasonable to expect that such pre-referral information was necessary and beneficial, and to grant access to these documents would prevent referring parties from disclosing sensitive and commercial in confidence information. Disclosure would see a discouragement from others in sharing information with respondents outside of formal statutory processes. The Tribunal was satisfied that disclosure of such documents would have a significant adverse effect on the functioning of the Department and how it would continue to handle and assess other referral applications in future. The documents were conditionally exempt on this basis.
Following s 11(5) of the FOI Act, the Tribunal then considered whether access to the documents would be contrary to public interest. It was satisfied that disclosure of documents could have a substantial adverse impact upon the Department’s operations and that this countervailing harm weighed against disclosure of the documents. The documents were conditionally exempt pursuant to s 47E(d) of the FOI Act.
HELD
The Tribunal was satisfied that the applicant’s application for access to the document in dispute should not be granted. The Tribunal agreed that the correct decision to be given was that the documents in question were conditionally exempt under s 47E(d) of the FOI Act and it was not in the greater public interest to have these documents accessed in this instance.
Agriwealth Capital Limited and Australian Taxation Office (Freedom of Information) [2021] AICmr 60 (1 November 2021)
Agriwealth Capital Limited (“applicant”) applied the Australian Taxation Office (“ATO”) for access to various documents associated with a product ruling application, a novation payment tax deduction and a deed of novation, as well as communications or correspondence between 19 ATO officers. The ATO advised the applicant that it intended to refuse the request on the basis that a practical refusal reason existed because processing the request would substantially and unreasonably divert the ATO’s resources from its other operations (s 24AA(1)(a)(i) of the FOI Act).
The applicant revised the scope of the request. The ATO refused the applicant’s reviewed request on the same basis. It was estimated that there were approximately 2,203 pages of material falling within the scope of the revised request, which would take approximately 195 hours to process.
The applicant sought review by the Australian Information Commissioner (“Commissioner”) of the ATO’s decision. The Commissioner facilitated a conference between both parties, the applicant further emended the scope of the request by limiting the number of documents to those involving 3 ATO offices.
The ATO advised that, despite the fact that the further revised scope reduced the number of pages within scope to 433 pages, it maintained that a practical refusal reason existed on the basis that processing the request would take approximately 89 hours and would substantially and unreasonably divert the ATO’s resources from its other operations.
The issue to be decided by the Commissioner was whether a practical refusal reason exists.
Refusing access for a practical refusal reason: s 24
The Commissioner outlined that whether a practical refusal reason existed will be a question of the fact in the individual case and it is not possible to specify an indicative number of hours of processing time that would constitute a practical refusal reason.
The Commissioner did not consider that the time already taken to search and retrieve document for the applicant’s original revised request should be considered in addition to the time more recently taken to review the revised scope and locate the 433 relevant pages. There was also time taken to address technical content. The documents were reduced in scope from the original revised request, to less than 20% of pages.
The Commissioner was not satisfied that the ATO had established that its time estimate for processing was accurate and justified. In particular, she stated that the ATO did not provide sufficient particulars to explain how it determined the estimated processing time, or why the time required for the relevant business area to review the documents had not decreased given the approximately 80% decrease in the number of pages in scope. On this basis, the Commissioner was not satisfied that the ATO had established that processing the applicant’s further revised request would substantially divert the resources of the ATO from its other operations.
HELD
The Commissioner set aside the decision of the ATO and substituted a decision that a practical refusal decision did not exist.