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Friday, April 20, 2007

FOI doesn't deliver: list of post offices not in the mail

If most of us wanted to get hold of a list of post offices we'd probably look up

But when a Freedom of Information applicant sought a list of Australian Post Office licensees and their addresses, he mightn't have expected to end up in the Federal Court.

Alan Johnston not only ended up in court but ended up with nothing. Justice Greenwood of the Federal Court found in Australian Postal Corporation v Alan Johnston (2007) FCA386, that the list had been brought into existence for the substantial and operative purpose of Australia Post carrying on commercial activities. Documents received or brought into existence by Australia Post for the purpose of carrying on activities on a commercial basis in competition with others is excluded from the operation of the Act by Section 7 and Schedule 2 of the Federal FOIA.

The Federal Court decision overturned an Administrative Appeals Tribunal decision that the list excluding the names and telephone numbers of the licensees, were not excluded from the Act because they related, as well, to the "reserved", that is the monopoly functions, of the post office, the delivery of the mail. Documents concerning reserved functions do not relate to Australia Post's commercial activities.

The AAT and the Federal Court both accepted evidence from Australia Post that the list was maintained for a number of purposes and functions, including the reimbursement of fees and commissions, the supply of products; and the communication of changes of products and services with particular licensees.

No one seems to have suggested in either hearing that Australia Post would need to have such a list primarily for administrative purposes of keeping track of who out there were part of the postal network.

It's another example of how FOI has become a legal minefield, with fine legal points being argued just because they can, hang the time and expense of seeking, in this case successfully, to prove a point.

No sign of any recognition of the spirit and intent of FOI legislation, or of the need to demonstrate any harm would flow from disclosure of the document. As the Tribunal noted in its decision the list of offices and addresses would be nothing more than a list available in the white pages, albeit in a more convenient form.

At least Australia Post had the good grace not to seek an order that Mr. Johnston pay its costs in the Federal Court.

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