Pursuant to section 33 of the Administrative Appeals Tribunal Act, my directions are as follows:
[2]
(1) I direct that within 7 days of this decision, access be given by CASA to Jetstar to documents 1 to 4;
(2) I direct that within seven days of such access being given, Jetstar inform the Tribunal and the other parties whether it has any objection to the release to the FOI applicant of documents 1 to 4;
(3) I direct that Jetstar file and serve on each of the parties, its Statement of Facts Issues and Contentions within twenty-one days of this date, together with any evidence on which it desires to rely;
(4) If any such evidence is to be the subject of an application by Jetstar prohibiting publication under s 35(4) of the Administrative Appeals Tribunal Act, then it is to be marked confidential, and if so marked, its contents are not to be made public by any party until further order;
(5) I direct that CASA file and serve on each party, its Statement of Facts Issues and Contentions within fourteen days after service upon it of the Statement filed in accordance with direction 3, together with any evidence on which it wishes to rely.
(6) If the third party desires to file any Statement of Facts Issues and Contentions, such document is to be filed and served within twenty-one days after service upon her by Jetstar in accordance with direction 3 and any evidence upon which she desires to rely is to be filed within twenty-one days of the same date.
(7) I direct that all parties exchange and file Hearing Certificates for the period of September 2018 to December 2018 by 31 August 2018.
[3]
My intention as to direction 4 is that it may be the subject of further consideration by the Tribunal, and application by any party, once any evidence marked confidential has been filed.
Freedom of Information - request to access interim documents under the Freedom of Information Act by affected third party - argued that documents are exempt documents under the Freedom of Information Act - access granted for transparency and expediency of proceedings
The Civil Aviation Safety Authority (CASA) responded to a Freedom of Information (FOI) application and in the course of doing so, it consulted with Jetstar, which had a business involvement with the subject-matter of some of the documents which CASA had identified as documents falling within the scope of the FOI request. Those documents included three documents numbered 5, 6 and 7 in these proceedings and CASA was consulted about those documents under s 27 of the Freedom of Information Act1982 (Cth) (the Act).
That section provides as follows:
[13]
(1) This section applies if:
(a) a request is made to an agency or Minister for access to a document containing information (business information) covered by subsection (2) in respect of a person, organisation or undertaking; and
(b) it appears to the agency or Minister that the person, organisation or proprietor of the undertaking (the person or organisation concerned) might reasonably wish to make a contention (the exemption contention) that:
(i) the document is exempt under section 47 (trade secrets etc.); or
(ii) the document is conditionally exempt under section 47G (business information) and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
[14]
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
[15]
(2) This subsection covers the following information:
(a) in relation to a person - information about the person's business or professional affairs;
(b) in relation to an organisation or undertaking - information about the business, commercial or financial affairs of the organisation or undertaking.
(3) In determining, for the purposes of paragraph (1)(b), whether the person or organisation concerned might reasonably wish to make an exemption contention because of business information in a document, the agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person, organisation or undertaking is known to be associated with the matters dealt with in the information;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
[16]
(4) The agency or Minister must not decide to give access to the document unless:
(a) the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention; and
(b) the agency or the Minister has regard to any submissions so made.
(5) However, subsection (4) only applies if it is reasonably practicable for the agency or Minister to give the person or organisation concerned a reasonable opportunity to make submissions in support of the exemption contention, having regard to all the circumstances (including the application of subsections 15(5) and (6) (time limits for processing requests)).
[17]
(6) If the agency or Minister decides to give access to the document, the agency or Minister must give written notice of the decision to both of the following:
(a) the person or organisation concerned;
(b) the applicant.
[18]
Access not to be given until review or appeal opportunities have run out
[19]
(7) However, the agency or Minister must not give the applicant access to the document unless, after all the opportunities of the person or organisation concerned for review or appeal in relation to the decision to give access to the document have run out, the decision to give access still stands, or is confirmed.
[20]
Note 1: The decision to give access to the document is subject to internal review (see Part VI), review by the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
[21]
Note 2: For when all opportunities for review or appeal in relation to the decision to give access to the document have run out, see subsection 4(1).
[22]
Notice and stay of decision not to apply unless submission made in support of exemption contention
[23]
(8) Subsections (6) and (7) do not apply unless the person or organisation concerned makes a submission in support of the exemption contention as allowed under paragraph (4)(a).
[24]
(9) This section applies:
(a) in relation to an edited copy of a document - in the same way as it applies to the document; and
(b) in relation to a document containing business information - to the extent to which the document contains such information.
[25]
By the Act, a person, organisation or undertaking consulted under s 27 is given rights to seek internal review, to seek review by the Information Commissioner (IC), and to seek review in this Tribunal.
An FOI applicant made an application to CASA for certain documents and CASA identified at first, five, and later, two further documents within the scope of the request. Jetstar was accorded rights of consultation about documents 5, 6 and 7.
A general description of documents 1 to 4 came to the attention of Jetstar and it sought access to those documents to satisfy itself whether s 27(1) of the Act was engaged so as to enable it to claim, if so advised, that one or more of those documents was exempt or conditionally exempt under the Act. Jetstar's claim for access to documents 1 to 4 was agitated first with CASA, and after it was refused by CASA, with the Information Commissioner.
The rejection by CASA of the request for access to documents 1 to 4 was put on the basis that s 27(1) of the Act was not engaged. The Information Commissioner dealt with the request for review made by Jetstar about documents 1 to 4 by stating in a footnote to his decision that "only a third party who was invited to make a submission in support of an exemption contention, and did so (see s 54M(3)(b) of the Act) can seek IC review of an agency's access grant decision on internal review".[1]
(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).
(2) This subsection covers the following decisions:
(a) an access grant decision;
(b) a decision made by an agency on internal review of an access grant decision (see section 54C).
[26]
Note: If no decision is made on internal review within 30 days, a decision to affirm the original access grant decision is taken to have been made (see section 54D).
[27]
(3) The IC review application may be made by, or on behalf of, the following:
(a) in any case - an affected third party for the document in relation to which the decision covered by subsection (2) was made;
(b) in a case covered by paragraph (2)(b) - the person who made the request to which the decision relates.
The Information Commissioner must have intended to refer to s 54M(3)(a).
The expression "affected third party" for relevant purposes refers to "the person or organisation concerned (within the meaning of s 27)". See the definition of "affected third party" in s 4 and s 53C, item 2. The "person or organisation concerned" in s 27 is mentioned in sub-sections (3) to (8) of s 27.
The only exemptions which such a person may assert under s 27 are those referred to in s 27 (b)(i) and (ii), namely s 47 and 47G. The Act lists a number of other exemptions which might be claimed by an agency, but no right to be consulted by the agency about any other exemption is conferred by s 27. On the other hand, for example, a right to be consulted about the conditional exemption in s 47F is conferred in certain circumstances by s 27A.
Jetstar has renewed before me, its request for access to documents 1 to 4 so that it can prepare a Statement of Facts, Issues and Contentions. In principle, such an order may be made in exercise of the power to make direction under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth).
Mr Brennan who appeared before me for Jetstar, referred me to the Federal Court decisions in Harris v Australian Broadcasting Corporation (Harris).[2] Three such decisions are reported, the first two decided by Beaumont J and the last decided by the Full Court (Bowen CJ, St John and Fisher JJ). In the Full Court, an appeal from the second decision of Beaumont J was dismissed. The three decisions are reported together in volume 5 of the Administrative Law Decisions reports.[3]
Harris involved no application to this Tribunal. The proceedings were brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision made by the Australian Broadcasting Corporation not to claim exemptions under sections 36, 40 and 43 of the Act as it then stood. The exemption which became important was one arising under s 36 of the Act as it then stood. Today, s 47C of the Act covers some of the same ground as former s 36. The moving party was treated as a person aggrieved under the Administrative Decisions (Judicial Review) Act and obtained certain relief.
The rights conferred by s 27 accordingly do not exhaust the legal rights of a person to seek relief in the Courts in respect of the provision of access under the Act, but Harris does not discuss the jurisdiction of this Tribunal.
Mr Brennan intends, as foreshadowed, to make submissions as to the ability of a party to these proceedings who has been consulted under s 27, to urge grounds of exemption other than those mentioned in s 27, and this is not the occasion to consider those submissions, which were not developed by counsel before me on this application. One way in which that point may arise in the Tribunal is if a third party wishes to assert that he or she is a person who ought to be joined as a party because their interests are affected by the matters in issue with a view to urging that a document is exempt or conditionally exempt on some ground. That may not necessarily be limited to the exemptions referred to in s 27, as Harris shows. It may be that Jetstar will wish to make such a submission in relation to that part of its application for review relating to document 6, and to contend that it has rights to assert the existence of exemptions other than those mentioned in s 27. I am not ruling upon that question at this time.
Neither s 27, nor any of the various review provisions for which the Act provides, expressly provides for the resolution of any dispute between parties as to the matters referred to in s 27(1). Section 27(1) refers to a matter of fact in sub-section (a) and to what "appears" to the agency or Minister concerned under sub-section (b). Section 27(1)(b) is cast in terms requiring the agency to consider whether the person or organisation concerned might reasonably wish to contend that the relevant exemptions apply. At that stage of the enquiry, a doubtful case ought to be selected by the agency for consideration.
For the purposes of resolving the application before me by Jetstar to have access to documents 1 to 4 so that it may decide whether to make any allegations about those documents, I have preferred to resolve this application on practical grounds. I have not found it necessary to consider the effect of s 39(1) of the Administrative Appeals Tribunal Act in resolving this application.
In the first place, it has not been submitted to me that any harm will be done by permitting such access. No exemptions were asserted by CASA or the Information Commissioner in relation to the documents.
Secondly, having examined the documents, I cannot see that any harm will be done by allowing the access, and I consider that the granting of such access may make the resolution of these proceedings simpler.
I also bear in mind that if Jetstar now made its own Freedom of Information request for documents 1 to 4, it seems very likely that CASA would release the documents to Jetstar and the making of the proposed direction may assist the earlier resolution of these proceedings.
Section 27(7) of the Act prevents the giving of access to documents 1 to 4 to the FOI applicant at the present time, but does not in my opinion, prevent me from making the direction which I propose to make.
I should also make it clear that making the proposed direction does not involve any criticism of CASA or the Information Commissioner in having failed previously to grant access to Jetstar and involves no determination that if Jetstar makes any assertion in its Statement of Facts Issues and Contentions about documents 1 to 4, such claim will be within the jurisdiction of this Tribunal or that any relief about documents 1 to 4 will be appropriate. On the other hand, giving access to Jetstar is in the interests of transparency and, as I have observed, may enable the present proceedings to be heard more expeditiously.
I will direct that when Jetstar has seen the documents, it should forthwith indicate to the Tribunal and the other parties whether it desires to assert that documents 1 to 4 should not be released to the FOI applicant, so that in the event that it does not so desire, the documents may immediately be released to the FOI applicant.
That part of the present application which is to go ahead in any event, relates to document 6, and the directions I will make have relevance to that circumstance as well.
(1) I direct that within 7 days of this decision, access be given by CASA to Jetstar to documents 1 to 4;
(2) I direct that within seven days of such access being given, Jetstar inform the Tribunal and the other parties whether it has any objection to the release to the FOI applicant of documents 1 to 4;
(3) I direct that Jetstar file and serve on each of the parties, its Statement of Facts Issues and Contentions within twenty-one days of this date, together with any evidence on which it desires to rely;
(4) If any such evidence is to be the subject of an application by Jetstar prohibiting publication under s 35(4) of the Administrative Appeals Tribunal Act, then it is to be marked confidential, and if so marked, its contents are not to be made public by any party until further order;
(5) I direct that CASA file and serve on each party, its Statement of Facts Issues and Contentions within fourteen days after service upon it of the Statement filed in accordance with direction 3, together with any evidence on which it wishes to rely.
(6) If the third party desires to file any Statement of Facts Issues and Contentions, such document is to be filed and served within twenty-one days after service upon her by Jetstar in accordance with direction 3 and any evidence upon which she desires to rely is to be filed within twenty-one days of the same date.
(7) I direct that all parties exchange and file Hearing Certificates for the period of September 2018 to December 2018 by 31 August 2018.
My intention as to direction 4 is that it may be the subject of further consideration by the Tribunal, and application by any party, once any evidence marked confidential has been filed.
[30]
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment