Freedom of Information Act 1982 ss 15, 29, 56(1), 56(6), 58(1), 58(6)

Freedom of Information (Fees and Charges) Regulations

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307

1. On 23 December 1998, the applicant lodged a request dated 21 December 1998 for access to certain documents described in the request under section 15 of the Freedom of Information Act 1982. That section obliges the respondent to notify the applicant that the request has been received "as soon as practicable but in any case not later than 14 days after the day on which the request is received". Because of the Christmas holidays, there may have been some difficulty in sending this acknowledgment. The statute is clear, however, that it should have been given not later than 14 days. Indeed the request was on a form apparently prepared by the respondent for use in requests of this nature. At the foot of the form there is provision for a printed acknowledgment to be torn off and returned to the applicant, together with a receipt for the application fee. As far as I can tell from the documents before the Tribunal, the form of acknowledgment anticipated by the respondent's own pro forma document was not used.
2. The acknowledgment did not come until 22 January 1999, when the respondent's solicitor delivered to the applicant a letter bearing that date. That letter and an accompanying information sheet were in the following terms:

"Acknowledgment is made of your request of 21 December 1998 seeking access to documents under the above Act.

When a decision is made as to whether access is granted to these documents a charge, estimated at $405.00 will be payable. This amount has been calculated in accordance with the Freedom of Information (Fees and Charges) Regulations as follows:-

In view of the amount of the estimated charge, a deposit of $101-25 is required prior to the determination of your request. You will be notified of the decision on your request subsequent to the payment of the deposit.

Section 29 of the Freedom of Information Amendment Act 1991 [sic] provides for the imposition of charges under the Act and the rights of the applicant in relation to those charges. Upon notification of the estimated charges, the applicant has the right to argue that the charge has been wrongly assessed, or that the discretion should be exercised to reduce or not impose the charge. Remission of the application fee may also be sought. The applicant must provide reasons supporting the request for variation of the charge, as estimated.

If the decision to reduce or not impose a charge is requested, this office is required to reply within 28 days. The applicant may request that this matter be withdrawn if the decision is made to not reduce or waiver the charges. Matters of financial hardship and public interest will be taken into consideration in determining the variation of charges. If, after such a request, a decision is made to impose a charge, the applicant may seek an internal review or AAT review of the decision.

You are further advised that when a deposit is required the applicant must respond within 30 days, otherwise the case will be considered withdrawn and no further action taken.

As set out in the Freedom of Information Amendment Act 1991 [sic], an applicant must be advised of the following information in relation to the making of a request.

A $30.00 application fee is payable in respect of each request before any action will be taken.

Further charges will be payable. These include $15.00 per hour for search and retrieval time and $20.00 per hour for decision making time. Notification of a preliminary assessment of the costs involved, and the basis for that assessment, will be provided when the receipt of the request is acknowledged.

When a deposit is required the applicant must respond within 30 days, otherwise the case will be considered withdrawn and no further action taken. If no deposit is required to be paid the request will be considered and a formal decision given where possible, within 30 days of receipt of the application.

The applicant has the right, once notified of the estimated charge, to argue that the charge has been wrongly assessed, or that the discretion should be exercised whether or not impose the charge. Remission of the application fee may also be sought.

The applicant must provide reasons supporting the request for variation of the charge, as estimated.

If the discretion to reduce or not impose a charge is requested, this office is required to reply within 30 days. The applicant may request that this matter be withdrawn if the decision is made to not reduce or waiver the charges.

Matters of financial hardship and public interest will be taken into consideration in determining the variation of charges.

If, after such a request, a decision is made to impose a charge, the applicant may seek an internal review or AAT review of the decision.

May be sought by making a written application to this office within 30 days of the notification of the decision. An application fee of $40.00 is payable. The review will be conducted by a different officer and a decision should be notified in 30 days.

Appeals may be made to the Tribunal which has broad powers and may overturn a decision where appropriate. A review by the Tribunal is possible after an internal review and your application must be submitted to the Tribunal within 60 days of being notified of the result of the internal review. Appeal may also by made to the Tribunal is no result has been given within 30 days. A fee of $505.00 should accompany such a request."

1. It will be seen that the letter estimated likely charges and called for a deposit. The $101.25 was subsequently paid by cash to a cashier of the respondent.

4. Section 29 vests a discretion in an agency to decide that an applicant is liable to pay a charge in respect of a request for access to a document. The relevant parts of section 29 are as follows:

"29(1) Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a charge (not being an application fee) in respect of a request for access to a document, or the provision of access to a document, the agency or Minister must give to the applicant a written notice stating:

(a) that the applicant is liable to pay a charge; and

(b) the agency's or Minister's preliminary assessment of the amount of the charge, and the basis on which the assessment is made; and

(c) that the applicant may contend that the charge has been wrongly assessed, or should be reduced or not imposed; and

(d) the matters that the agency or Minister must take into account under subsection (5) in deciding whether or not to reduce, or not impose, the charge; and

(e) the amount of any deposit that the agency or Minister has determined, under the regulations, that the applicant will be required to pay if the charge is imposed; and

(f) that the applicant must, within the period of 30 days, or such further period as the agency or Minister allows, after the notice was given, notify the agency or Minister in writing:

(i) of the applicant's agreement to pay the charge; or

(ii) if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both - that the applicant so contends, giving the applicant's reasons for so contending; or

(iii) that the applicant withdraws the request for access to the document concerned; and

(g) that if the applicant fails to give the agency or Minister such a notice within that period or further period, the request for access to the document will be taken to have been withdrawn.

(2) If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f) within the period or further period mentioned in that paragraph, the applicant is to be taken to have withdrawn the request for access to the document concerned.

(3) An agency or Minister must not impose a charge in respect of a request for access to a document, or the provision of access to a document, until:

(a) the applicant has notified the agency or Minister in a manner mentioned in paragraph (1)(f); or

(b) the end of the period or further period mentioned in that paragraph."

5. No part of the letter or accompanying notice quoted above amounts to a compliance with paragraphs 29(1)(f) and (g). Both the letter and the information sheet have attempted to compress the notice requirements of section 29. In the course of doing so, important elements have been overlooked with possible misleading results. It is the applicant's contention that this failure to give a written notice in accordance with subsection (1) precludes the agency from imposing a charge because of the provisions of subsection (3).

6. Section 56(1) provides that where notice of a decision on a request for documents has not been received within the stipulated period, the respondent is to be deemed to have made, on the last day of that period, a decision refusing to grant access to the document. In this case, the relevant period expired on Friday, 22 January 1999. On Monday, 25 January 1999, the applicant lodged its application with this Tribunal, pursuant to that section, to review the deemed refusal. On 3 February 1999, the respondent applied to this Tribunal, pursuant to subsection 56(6), for an extension of time. That subsection empowers the Tribunal to allow further time to an agency to deal with the request for access. After representations were made, a decision was given on 4 February 1999 extending time, pursuant to subsection 56(6) until the close of business on 26 February 1999.

7. On that day, the respondent delivered a letter dated 19 February 1999, containing the decision in relation to the documents sought and advising the applicant that a balance charge of $300.25 was then payable. The calculations of this amount have been made in accordance with the terms of the Freedom of Information (Fees and Charges) Regulations and no challenge is made by the applicant to the quantum of the charges sought to be imposed.

1. The letter of 26 February attaching the decision letter of 19 February stated:

"The Commissioner of Taxation declines to release any documents pertaining to the applicant's freedom of information request until the fees and charges specified in the letter of 19 February are paid. I anticipate that this will necessitate a hearing before the Administrative Appeals Tribunal."

9. It is this decision which the applicant now challenges and which I have heard in proceedings which have been listed as a directions hearing. In fact, however, for reasons which will shortly appear, the proceedings were, in fact, part of the substantive review of the reviewable decision.

10. It is the applicant's case that a proper notice was not given under subsection 29(1) and that, accordingly, the respondent is precluded by subsection 29(3) from imposing the relevant charges because the period referred to in paragraphs (a) or (b) of subsection 29(3) have neither begun nor ended because the point of commencement was not fixed by the giving of an adequate notice.

11. It was not seriously contested that the notice in the estimate letter of 22 January 1999 and the final purported imposition of charges in the decision letter of 19 February 1999, did not amount to a compliance with the requirements of subsection 29(1). It is to be regretted that the respondent's documentation (which seems to be a standard information sheet) does not comply with the terms of the subsection. The imposition of charges is discretionary. If the Commissioner decides to estimate and later impose charges, then he is under a clear obligation to give notice to an applicant of the three courses of action then open to that applicant and the time limits involved. He is under a further obligation to put an applicant on notice of the risk of deemed withdrawal of the request if no timely action is taken. The section is clearly included for the information and protection of applicants for information. There is no hardship involved in the Commissioner complying with his obligations, particularly if form documents are to be used to inform applicants. There is no good reason why the Commissioner should ignore his obligations under that section. It is to be hoped that this aspect of procedure under the Act is soon reviewed and an administrative procedure put in place which will ensure that if charges are to be estimated, then a proper notice should be given in accordance with the agency's statutory obligations. It should not be necessary to refer to sanctions when urging an agency to observe its statutory obligations. However, the broad discretion to review matters relating to charges vested in this Tribunal by subsection 58(6) and the power to recommend to the Attorney General that the costs of an applicant be paid by the Commonwealth, are matters that should be borne in mind in ensuring a system designed to produce a correct outcome.

12. This having been said however, it seems to me, that the Tribunal is not deprived of jurisdiction to review the relevant decision because the respondent has not complied with its statutory obligations. Subsections 58(1) and (6) empower this Tribunal to review any decision that has been made in respect of a request and "to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency". Subsection 58(6) specifically empowers the Tribunal to deal with matters relating to charges payable under the Act in relation to a request. Notwithstanding the terms of subsection 29(3), I consider that the jurisdiction of the Tribunal extends to a capacity to decide whether a charge should have been made and whether access should be given, notwithstanding the flawed decision making process leading to the purported imposition of the charges.

13. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307, at 339, Smithers J summarised the position as follows:

"In my opinion, adopting what I have called a liberal construction of the relevant expressions in ss 25 and 26 and the Schedule to the Administrative Appeals Tribunal Act which is appropriate to the nature and object of that Act, the necessary conclusion is that those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision."

14. The distinction between procedural flaws or failure to comply with preconditions on the one hand, and naked usurpation of power on the other hand, was expressed by Deane J, in the following passage at 342 and 343:

"In considering whether the application satisfied these requirements, it is necessary to distinguish between a colourable exercise of actual power conferred by an enactment and the usurpation of power. The exercise of a power conferred by an enactment will ordinarily involve, at least implicitly, assessment of the content of the power and determination of whether any conditions precedent to its existence or valid exercise have been fulfilled. Such assessment and determination, even if wrong or mistaken, are incidents of the power conferred. A decision as to the exercise of the power which is based upon and is the result of a wrong assessment of content or a mistaken determination that conditions precedent have or have not been fulfilled will, in terms of legal effect, be void or voidable. It is none the less proper, in the context of a legislative scheme for review of decisions made under the enactment, to regard the decision as a "decision under" the enactment: cf Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90 at 114-6; Calvin v Carr (1979) 22 ALR 417 at 425-7. Where, on the other hand, an enactment confers no relevant power or function at all, the usurpation of power or function cannot properly be regarded as a "decision under" the enactment merely because the usurper points to the enactment as a source or possible source of any decision-making power or function."

Had the applicant sought to have the charges aspect of the decision judicially reviewed, it may well have been successful. In this Tribunal, however, as the above observations make clear, the nature of administrative review requires that purported decisions made on questionable legal foundations should, nevertheless, be reviewable.

15. The making of the charge is part of the decision in question, which is now not the original deemed refusal, but the decision contained in the letter bearing the date 19 February 1999. The Tribunal has power to review the access decision, as well as any other aspect of the decision ("any matter relating to the request") either by way of preliminary hearing or at the substantive hearing. In my view, there is no reason why the powers granted under subsection 58(6) should necessarily be exercised at the same time as the powers granted by subsection 58(1) unless there are reasons of procedural fairness which would compel this. The power of review probably does not extend to a power to give a valid notice under subsection 29(1). However, there is no longer a need for such a notice. As the Tribunal is now seised with the power of review of all aspects of the decision, it is no longer appropriate, or necessary, to attempt to cure any pre-existing procedural deficiencies. I will, therefore, separately review the charges aspect of the decision.

16. In the present case, there is no challenge to the imposition of charges, except that the preconditions for raising them have not been met. Although reference was made to sections 3 and 11 and the universal right of access which applicants have, there can be no question, in view of the existence of section 29 and the corresponding regulations, that the universal right of access is modified by an obligation (if the agency so decides) to make payments defraying the costs connected with requests. Having been vested with the full decision making powers of the respondent and, as I have held, being now free of the procedural impediments arising from non-compliance with subsection 29(1), and having regard to the evident policy of the Act and the lack of opposition to quantum, I will decide that, as part of the decision being reviewed, the respondent's decision conveyed in the letter of 26 February 1999 to decline to release any documents until the specified charges were paid should be affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr BJ McMahon (Deputy President)

Signed: .....................................................................................

Solicitor for the Respondent Australian Government Solicitor