Acting Freedom of Information Commissioner Toni
Some points of interest below, drawn from a number of decisions concerning business information, and others regarding charges, diversion of resources and testing assumptions such as "five minutes a page" widely used in the charges calculator, and information received from a foreign government agency.
Business information
Third party objectors feature prominently, in a number of cases failing to convince the OAIC that information should be withheld.
A third party, objecting to disclosure of information needs to do more than assert to the OAIC that disclosure may affect it adversely in respect of its lawful business, commercial or financial affairs.The specific harm that might reasonably be expected to flow from disclosure must be identified. In this case the claim failed. (K and Australian Securities and Investments Commission [2013] AICmr 22 at 10-13).
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A claim by a third party that its business, although not specifically identified, would be harmed by release of a report because it could be identified through 'a process of deduction' by the applicant or by other parties who obtain the document was rejected on the grounds that the liklihood of this was low. The claim failed to satisfy the "would be, or could reasonably be expected to be" harmed test in s 55D. "I view the applicant's claim that it might be identified from the report and thereby become the subject of negative media commentary to be, in the words of the Guidelines, a 'mere assertion or speculative possibility.' (L and Department of Agriculture Fisheries and Forestry [2013]AICmr 23 at 19).
The third party objector only has a right to be heard on contentions relating to the relevant exemption/s in the FOI act on which it was consulted not on other exemption grounds it considers should justify non-disclosure ( L at 22).
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The first five paragraphs of a letter from the TGA to an applicant proposing a medical devicetfor inclusion on the Register of Therapeutic Goods, summarising parts of of a publicly available report, and setting out the agency's regulatory functions and powers, and five requests for information would not, or could not reasonably be expected to, adversely affect the applicant in the conduct of its business. The sixth question contained information that could if disclosed reasonably be expected to prejudice its competitive commercial activities. The material reveals information that would only be known by TGA and the applicant and arises because of the regulatory relationship between the TGA and the applicant. While conditionally exempt under s 47G(1)(a), disclosure of this information on balance would not be contrary to the public interest:
- In deciding whether disclosure of the document would be contrary to the public interest I am required to balance the public interest in making information available to the public about a matter of public importance, that is, public health as well as how the TGA deals with the sponsors of medical devices when problems are reported with the medical device, with the private interests of the applicant in preserving its competitive commercial activities, professional reputation and profitability.
- On balance, I consider the factors favouring access outweigh those that do not. The applicant has not discharged the onus on it to establish that access to the document should be refused.
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A decision to withhold information about funding for Mission Australia under a government jobs program was upheld in large part on business affairs (and deliberative process) grounds. Some documents that simply recorded the actual decision were not part of the thinking/deliberative process.
(Dreamsafe Recycling and Department of Education, Employment and Workplace Relations [2013]AICmr 34)
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While substantially affirming a decision by Foreign Affairs and Trade, Acting Commissioner Pirani decided there was some overreach in a business affairs exemption claim for information concerning communication with Qantas about two employees who had been detained in Vietnam."The information itself is not particularly sensitive.. I am not satisfied that the harm claimed by the Department offsets the public interest in giving access to the information." (O'Sullivan and Department of Foreign Affairs and Trade [2013]AICmr36 (at 43-47.)
Charges
The time of officers in the agency whom the decision maker consults in the course of making a decision, including meetings to discuss the matter, is not chargeable (M and Department of Agriculture Fisheries and Forests [2013] AICmr 24 (at 24-26.)
Substantial and unreasonable diversion of resources
ASIC's broad and generous estimate of the time that would be involved in retrieving files and processing an application came in for close attention by Acting Commissioner Pirani. And didn't withstand scrutiny. It turns out ASIC does not have dedicated FOI officers with responsibility for handling FOI requests and making FOI decisions so others carry the load (35). But when the OAIC checked out the claims, even assumptions used in the fabled 'charges calculator" they weren't close to reality. Worth noting:
- I turn now to the other activities necessary to finalise a decision on this request. As noted above, ASIC’s estimate of how long it would take to decide whether to grant access to the requested files was based on an estimate that approximately 2000 pages would need to be considered for the applicant’s request, and an assumption that each of those pages would take five minutes to read and make a decision on. This results in an estimated decision-making time of ‘approximately 166 hours of consideration and assessment’.
- It is common practice for agencies to use a ‘charges calculator’ tool to estimate processing times for the purpose of issuing preliminary assessments of charges under s 29 of the FOI Act. The charges calculator is a Microsoft Excel document that is circulated amongst Commonwealth agencies and used to generate estimates of how long FOI decision making will take. It has as its parameters a number of assumptions about how long an FOI request should take to process. The calculator varies in its exact form from agency to agency, but as one of its parameters commonly uses five minutes per page as an estimate of how much time will be required to examine documents for decision-making purposes, with additional time allocated for the consideration of exempt material. While such rough estimates may be a sufficient approximation for a preliminary assessment of charges made under s 29(1) of the FOI Act, in my opinion a more rigorous approach will generally be required before a decision to refuse access on the basis that a practical refusal reason exists. ASIC declined to provide any additional justification for its estimate in response to the OAIC’s inquiries.
- To verify ASIC’s estimated processing time, two OAIC officers attended ASIC premises and inspected three of the five files covered by the applicant’s request. These three files contained approximately 1300 pages. A significant proportion of the documents on the three files were publicly available material (such as press releases, transcripts, news clippings and legislation) to which no exemption would apply. That material would take very little time to assess for release.
- The OAIC officers then took a sample of the not publicly available pages within the files and considered what exemptions might apply to those documents. The officers sampled approximately 600 pages from the files.
- The OAIC officers compiled a handwritten schedule listing the title of each document and identified exemptions that were likely to apply to each document. Reviewing the 600 sample pages and preparing this handwritten schedule took an average time of approximately 30 staff-seconds per page. This relatively quick time was possible because many of the documents spanned multiple pages or were clearly exempt in full.
- Of course, I do not think that 30 seconds per page is a realistic estimate for how long this request would take to process. Additional time would be required to finalise a decision beyond this initial assessment. For example, it would be necessary to finalise a decision on precisely what exemptions applied to the documents or parts of documents, to type a schedule, prepare edited copies of documents for partial release pursuant to s 22, and to write a statement of reasons. Some additional time would also be required to consult third parties. ASIC provided an estimate of ‘four weeks’ to consult 11 third parties. Again, it is unclear whether this refers to staff-days or to the total time that will pass while ASIC consults those third parties (including time waiting for responses to correspondence sent to the third parties). How this figure was arrived at was not explained by ASIC and for that reason I place little weight on it.
- While processing this request would take a significant amount of time, I think that ASIC’s estimate is too high. On the basis of the inspection of the documents completed by the OAIC officers, I believe that the total time to process this request would be around 50 staff-hours or less, rather than the estimate of more than 166 hours provided by ASIC.
International relations and foreign government communication
Paul Watson of all those tussles with japanese whaling vessels, failed in a bid to access information supplied to the Australian Federal Police by an unnamed foreign government (no prizes) "provided informally by the foreign authority on the basis that it would be used for investigative purposes and not disseminated further unless its use in legal proceedings was later approved. The Acting Commissioner upheld the decision to refuse access both on damage to international relations and information supplied in confidence by a foreign government grounds. (Watson and Australian Federal Police ([2013] AICmr 32)
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