Freedom of Information (Fees and Charges) Regulations rr. 4, 5, 6, 9, 10 and 11

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

DECISION AND REASONS FOR DECISION [2005] AATA 1032

And DEPARTMENT OF INDUSTRY, TOURISM AND RESOURCES

Decision: The Tribunal does not have jurisdiction to consider the applicant's application.

On 27 June 2005, Mr John Ford made a request to the Department of Industry Tourism and Resources ("Department") under the Freedom of Information Act 1982 ("FOI Act"). When he did not receive a decision regarding his request within 30 days, he applied to the Tribunal on 15 August 2005 for review of a decision that he said had been deemed to have been made refusing to grant access to the documents he had requested. Mr Ford said that s. 56(1) deemed the Department to have made the decision on 11 August 2005. The Department says that Mr Ford has made his application too early. It had decided to waive the application fee that Mr Ford would otherwise have had to pay. As it did not do so until 29 July 2005, it had 30 days from that day in which to make its decision on his request. That meant that it had until 28 August 2005 to make its decision and it would only be if it had not done so by then that Mr Ford would be able to apply to the Tribunal. I have decided that the Department's view is correct and that Mr Ford has applied too early. The Tribunal does not have jurisdiction as the Department has neither made a decision on his request nor been deemed under the FOI Act to have made a decision.

2. In general terms,[1] a person who wants access to a document of an agency[2] or an official document of a Minister, may request access to that document.[3] Section 15(2) of the FOI Act provides that:

(a) be in writing; and

(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and

(c) specify an address in Australia at which notices under this Act may be sent to the applicant; and

(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and

(e) be accompanied by the fee payable under the regulations in respect of the request."

3. On receiving the request, the agency or Minister must take reasonable steps to acknowledge it. The agency or Minister must do so as soon as practicable but, in any case, within 14 days of receiving the request.[4] As soon as practicable but, in any case, within 30 days of receiving the request, the agency or Minister must take all reasonable steps to enable the applicant to be notified of a decision on the request.[5] In certain circumstances, the agency or Minister may extend the time by a further 30 days.[6]

4. Section 4(8) complements s. 15(2)(e). It provides that there is "... an application fee in respect of the application ..." where regulations "... declare that an application fee is applicable in respect of an application under subsection 15(1) ...". So does s. 94(1). It provides that regulations may be made prescribing all matters that are required or permitted to be made under the FOI Act. Under it, the Freedom of Information (Fees and Charges) Regulations ("Regulations") have been made. Regulation 5 provides that, for the purpose of s. 4(8) and subject to r. 6, an application fee of $30.00 is applicable in respect of an application under s. 15(1). In general terms, r. 6(3) provides that r. 5(a) does not apply in relation to an application under s. 15(1) requesting access to a document that is a document relating to a claim

for a prescribed benefit[7] and to which the "applicant"[8] has not had access during the previous three months.

5. Section 30A(1) of the FOI Act provides for the remission of an application fee:

(a) there is, in respect of an application to an agency or Minister under subsection 15(1) requesting access to a document ... requesting a review of a decision relating to a document, an application fee (whether or not the fee has been paid); and

(b) the agency or Minister considers that the fee or a part of the fee should be remitted for any reason, including either of the following reasons:

(i) the payment of the fee or of the part of the fee would cause or caused financial hardship to the applicant or a person on whose behalf the application was made;

(ii) the giving of access is in the general public interest or in the interest of a substantial section of the public;

the agency or Minister may remit the fee or the part of the fee."

6. A person requesting access to a document may make a written request for the application fee to be wholly or partly remitted under s. 30A(1). "The agency or Minister must take all reasonable steps to enable the applicant to be notified of the decision on the request as soon as practicable but, in any case, no later than 30 days after the day on which the request was made."[9] If 30 days have passed and the applicant has not received notice of a decision on the request, the agency or Minister:

"... is taken, for all purposes of this Act, to have made, on the last day of the period, a decision to the effect that no part of the application fee is to be remitted."[10]

"Where the whole or a part of an application fee is remitted under subsection (1), then, to the extent of the remission, there shall not, for the purposes of subsection 15(2) ... be taken to be an application fee in respect of the application."[11]

7. Section 94(1) provides in part that regulations may be made:

(a) the making of charges of amounts, or at rates, fixed by or in accordance with the regulations in respect of requests for access to documents or in respect of the provision of access to documents (including the provision of copies or transcripts) in accordance with this Act, including requiring deposits on account of such charges; and

(b) the officers who may give decisions on behalf of an agency."

8. Section 94(2) places some limits on the regulations that may be made. If a charge is made for time that is spent by an agency or a Minister in searching for or retrieving a document or making a decision, it must be levied at a single hourly rate regardless of the classification or designation of the officer undertaking the task.[12] A charge levied for supervision of a person's inspecting a document may take account of the direct costs incurred by the agency.[13]

9. Neither the FOI Act nor the Regulations define what is meant by the word "charge". The Regulations do deal with the liability to pay charges:

"Where the applicant has made a request for access to a document of an agency or an official document of a Minister, the agency or Minister may make a decision whether the applicant is liable to pay, in respect of the request or in respect of the provision to the applicant of access to the document, any of the charges applicable under these Regulations, other than an application fee."[14]

10. Once it has been decided that a person requesting access to a document is liable to pay a charge, then, in general terms,[15] the charge is payable in the amount or at the rate fixed by or in accordance with the Schedule. Part I of the Schedule sets out the charges in respect of a request for access to a document.[16] Those charges relate to matters such as searching for, or retrieving a document, producing a document containing the information requested in a discrete form and the time spent in making a decision regarding access to the document requested. Part II of the Schedule sets out the charges in respect of the provision of access to the document requested.[17] Those charges relate to matters such as supervision of inspection of a document, photocopying and preparing a document from which deletions are made.

11. Where a person is liable to pay a charge in respect of a request for access to a document or in respect of the provision of access to a document, generally the charge shall be paid to the agency or Minister before access is granted to the document.[18]

12. If the agency or Minister notifies the person making the request that it has imposed a charge and does so before the request must be decided:[19]

"... there shall be disregarded, in the computation of that period [of 30 days or an extended period], each day occurring during the period commencing on the day on which that notification is received by the applicant and ending on the day that is, under subsection (3), the relevant day in relation to that request."[20]

The "relevant day" is ascertained by reference to the day on which the relevant charge or deposit is paid or the day on which the agency or Minister notifies the applicant that a charge will not be imposed.[21]

13. An application for review may be made to the Tribunal for review of a number of decisions. Some relate to granting, refusing or deferring access to a document in accordance with a request.[22] Another relates to a decision refusing to allow a further period for making an application for internal review of a decision under s. 54(1).[23] Two relate to fees and charges:

"(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or

(e) a decision under section 30A relating to remission of an application fee."[24]

14. A person may only apply to the Tribunal in respect of one of these decisions if not entitled to apply for review under s. 54.[25] Section 54 is concerned with internal review of a decision. Each of the decisions to which I have referred in the previous paragraph is reviewable under s. 54.[26] Only if the person has applied for internal review under s. 54 and 30 days have passed without notification of a decision may that person apply to the Tribunal for review without waiting for that decision.[27] Provided there is no unreasonable delay in applying to the Tribunal, the application is treated as having been made within time.[28]

Must an application fee by paid before there is a request?

15. The first question I must answer is whether each of the pre-requisites set out in s. 15(1), and particularly that relating to the fee, must be met in order for the request to be valid. In considering that issue, I have first had regard to the principles set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:[29]

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."[30]

16. This is not a case concerned with the invalidity of the exercise of a power but with the efficacy or otherwise of a request. Is a request for access to a document efficacious, and so a request that must be answered, only if it is accompanied by any fee payable under the Regulations or must it be answered even if it is not accompanied by any such fee? It seems to me that the principles expressed by their Honours are equally applicable in this context. They lead me to conclude that the request must be accompanied by the fee payable under the regulations before it has any efficacy and before an agency, or Minister, has a duty to answer it. In reaching this conclusion, I have first taken into account the requirement in s. 15(2)(e) itself. I have next taken into account the power to remit the application fee found in s. 30A(1). If the requirement to pay an application fee were not an essential condition of there being a request, there would be no need to provide for remission of an application fee. More importantly, there would be no need to provide that remission of an application fee means that, for the purpose of s. 15(2), no application fee is payable in respect of the application and yet that is what s. 30A(2) provides.

When does the time for deciding a request begin?

17. The time limits prescribed by s. 15(5) of the FOI Act are set by reference to the receipt of a request. Given that I have decided that a request must be accompanied by the application fee, it cannot be regarded as a request that triggers those time limits unless and until it is accompanied by the relevant application fee. That would mean that, if an application fee were to be given to an agency a week after it received the request, the time limit prescribed by s. 15(5) would not begin to run until the application fee had been received. Only then, would the request comply with s. 15(2)(e). The payment of the application fee could not be regarded as perfecting the application in retrospect so that time is taken to have begun to run when the request was first made a week earlier.

18. Does a request to waive the application fee alter that position? I think not. Certainly, s. 30A(2) provides that a decision to remit a fee means that there is not taken to be an application fee payable in respect of the application. That could be read as effectively operating retrospectively so that a decision to remit has the effect of meaning that no application fee was ever payable in respect of the application. If that were correct, it would mean that the agency would lose all or some of the 30 day period within which to make a decision on the merits of the request.

19. That conclusion would not fit comfortably with the provision in s. 30A(1B) that the agency's failure to decide a request for remission of an application fee means that a decision refusing to waive is deemed to have been made on the last day of the 30 day period after the request for remission was made. It would not fit comfortably with the review provisions in Part VI of the FOI Act. Provision is made for review of a remission decision under s. 30A in the Tribunal but only after the remission decision has been internally reviewed. There would be no need to provide for this right of review for it would, for all practical purposes, be subsumed by either a substantive decision on the merits of the request or a decision deeming the request to be refused if no decision were made within 30 days from the date the request was lodged. The conclusion that the remission decision takes effect retrospectively to the date the request was lodged would not fit comfortably with the review provisions in s. 56. It permits an application to be made to the Tribunal "where a request has been made ... in accordance with section 15" (emphasis added). A request cannot be made "in accordance with" s. 15 until the application fee is paid.

20. The matters I have raised in the previous paragraph support my reaching the contrary conclusion. They are consistent with an interpretation that a decision to remit a fee only takes effect from the date on which it is made. That means an application fee payable in respect of the request is taken not to be payable from that date and not from the earlier date when the request was received by the agency without the fee.

21. This is an interpretation that is also consistent with the approach taken by the FOI Act in relation to charges. Although not defined, it is clear from the provisions to which I have referred that the application fee and the charges are different. An application fee accompanies the initial request. Its amount does not vary according to the number or nature of documents sought. Charges are levied in relation to the processing of that request i.e. in respect of a request for access to documents or in respect of the provision of access to those documents in accordance with the FOI Act. The provisions in s. 31 permit periods during which charges are under consideration and while charges remain unpaid to be disregarded. That approach is consistent with the requirement that the application fee be paid before an agency or Minister need begin considering its decision on that request.

22. For the reasons I have given, I have decided that the application fee must be paid or it must be remitted before a request complies with s. 15. Until that time, the fact that Mr Ford asked the Department for documents does not mean that he has made a request for those documents under the FOI Act. He has not. Only when he has either paid the application fee or it has been remitted does it become a request. Only when it becomes a request does the 30 day time limit begin to run. As Mr Ford was notified of the remittal of the application fee on 29 July 2005, the Department had until 28 August in which to make a decision on his request. As that was a date after Mr Ford lodged his application for review in the Tribunal, the Tribunal does not have jurisdiction as the Department had neither made a decision nor been deemed to have made a decision.

I certify that the twenty-two preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

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

Nathaniel Wills Associate

Date of Hearing 27 September 2005

Date of Decision 19 October 2005

For the Applicant self represented

Counsel for the Respondent Mr C. Sloan, Legal Services Centre,

[1] Requests for access to personal documents are subject to different procedures: FOI Act, s. 15A.

[2] An "agency" includes a Department: FOI Act, s. 4(1).

[7] A "prescribed benefit" means a pension, allowance or benefit payable under four named statutes and "... any payment of a like nature the purpose of which is to provide income support to persons of inadequate means.": Regulations, r. 6(1)

[8] The word "applicant" is defined to mean "... a person who has made a request": FOI Act, s. 4(1). It does not go further and specify a request for access to a document or a request for an application fee to be wholly or partly remitted.

[15] A qualification is made where access may be provided in more than one form (Regulations, r. 8) and charges may be based on estimates and adjusted (Regulations, rr. 9 and 10).

[19] i.e. either 30 days or within a further period extended under s. 15(5)(b).

[28] FOI Act, s. 55(3) and see also s. 55(4)

[29] [1998] HCA 28; (1998) 194 CLR 355

[30] [1998] HCA 28; (1998) 194 CLR 355 at 388-389