CITATION: Cianfrano v Department of Commerce [2005] NSWADT 297 DIVISION: General Division APPLICANT PARTIES: Robert Cianfrano RESPONDENT Department of Commerce FILE NUMBER: 053066 HEARING DATES: 20/06/2005 SUBMISSIONS CLOSED: 06/20/2005 DATE OF DECISION: 12/16/2005 BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - advance deposit and fees and charges - Freedom of Information Act - access to documents - advance deposit and fees and charges MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information (Fees and Charges) Order 1989 Freedom of Information Act 1989 Cianfrano v NSW Department of Commerce [2004] NSWADT 134 Commissioner of Police v District Court of NSW (1993) 31 NSWLR 606 CASES CITED: Re Hesse and Shire of Mundaring [1994] WAICmr 7 Re Ravlich and Crown Solicitor's Office [2000] WAICmr 8 Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 Cianfrano v Director General, NSW Depa APPLICANT REPRESENTATION: In person RESPONDENT G Mahony, solicitor, Crown Solicitor's Office ORDERS: 1. Applicant's application for review dismissed; 2. Determination of agency affirmed; 3. Respondent's application for costs allowed; 4. Applicant to pay the respondent's costs of preparation of the written submissions and of attendance at hearing by its legal representative. If the parties do not agree on the amount, the Tribunal pursuant to s 353 of the Legal Profession Act 2004 directs the Manager, Costs Assessment to refer for assessment the costs payable as a result of this order REASONS FOR DECISION 1 The applicant has applied for review of a determination by the respondent agency requiring him to pay an advance deposit in relation to an application made by him for access to documents under the Freedom of Information Act 1989 (FOI Act or the Act) and refusing to reduce the amount of the deposit under cl 5(2)(a) or cl 6 of the Freedom of Information (Fees and Charges) Order 1989 (the Order). The respondent has applied to the Tribunal for an order for costs to be made against the applicant. Advance Deposit Determination 2 On 6 January 2005 pursuant to s 17 of the FOI Act the applicant lodged an application for access to documents described as: (a) The personal affairs of Robert Cianfrano (b) Administrative and other documents relating to [his] Freedom of Information application of 25 September 2003 (c) Administrative and other documents relating to Administrative Decisions Tribunal matter, Cianfrano v Department of Commerce [2004] NSWADT 134. 3 On 12 January 2005 the agency advised that a processing fee of $690 had been estimated, and required an advance deposit. The relevant provision is s 21 which provides: ' 21 Agencies may require advance deposits (1) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the amount of the application fee, the agency may request the applicant to pay to it such amount, by way of advance deposit, as the agency may determine. (2) If, in the opinion of an agency, the costs to the agency of dealing with an application are likely to exceed the sum of the application fee and of any advance deposits paid in respect of the application, the agency may request the applicant to pay to it such amount, by way of further advance deposit, as the agency may determine. (3) The amount of an advance deposit requested by an agency in respect of an application shall not be such that the sum of the application fee, the advance deposit and any further advance deposits paid in respect of the application exceeds such amount as, in the opinion of the agency, will be necessary to cover the costs of dealing with the application. (4) A request for an advance deposit shall be accompanied by a notice that sets out the basis on which the amount of the deposit has been calculated. (5) The amount of an advance deposit requested by an agency in respect of an application shall be paid to the agency within such period of time as the agency may specify in the request. (6) The period of time between the making of a request under this section and the payment of an advance deposit in accordance with the request shall not be taken into account in calculating the period of 21 days within which the relevant application is required to be dealt with.' 4 As permitted by s 34, the applicant applied on 17 January 2005 for internal review of this determination. Section 34 relevantly provides: ' 34 Internal review (1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination. … (7) For the purposes of this section, a person is aggrieved by a determination: (a) if the determination relates to an application made by the person under section 17 and is to the effect that: … (iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, …'. 5 In his application for internal review the applicant claimed that the agency had not facilitated the application and processed it in accordance with the legislation, the costs calculated were unjustifiable, he should not be paying for costs and fees for the inefficiencies of the agency, and the agency had not demonstrated that the documents contain information that are contrary to the public interest (sic). 6 On internal review, the agency affirmed its prior decision. It noted that the first element of the request was restricted to the 'personal affairs' documents of the applicant. As to the processing of that aspect of the request and the remainder of the request, it referred to the standards in relation to levying charges and estimating costs laid down in the Premier's Department FOI Procedures Manual (1994) and the official Guidelines for Using FOI in New South Wales pamphlet. The agency denied that any costs were attributable to inefficiencies or the like. The agency rejected the criticism that it was in the public interest that the fees and charges be reduced or waived, noting that there was nothing about the contents of this application that might be said to relate to issues of wider public interest, in contrast to other applications made by the applicant that have related to the decision-making of government in respect of the sale of the Flemington markets. The internal review determination is dated 4 February 2005, and it is that determination which is the subject of the present application for review: see s 53(1) and (3)(a)(v). 7 The power to levy fees and charges is given by s 67, which provides: ' 67 Fees and charges (1) The Minister may, by order published in the Gazette, establish guidelines in relation to the imposition, collection, remittal and waiver of fees and charges under this Act. Editorial note. For guidelines, see order in Gazette No 81 of 30.6.1989, p 3834. (2) In establishing guidelines under this section, the Minister shall have regard to: (a) the need to ensure that disadvantaged persons are not precluded from exercising their rights under this Act merely because of financial hardship, and (b) the need to ensure that fees and charges should reflect the costs incurred by agencies and Ministers in exercising their functions under this Act. (3) An agency or Minister, in determining the amount of any fee or charge under this Act, shall not contravene any guidelines in force under this section. (3A) The guidelines in force under this section are to be taken into account: (a) by the Tribunal when reviewing a determination described in section 53 (3) (a) (iv) or (v), and (b) by the Ombudsman when reviewing the conduct of a person or body in relation to such a determination. (3B) A charge under this Act for dealing with an application or for giving access to a document is not to include any amount for additional time spent in searching for a document that was lost or misplaced. (4) Any fee or charge that is due to an agency or Minister under this Act may be recovered as a debt or liquidated demand in a court of competent jurisdiction. (5) Fees or charges received by agencies or Ministers under this Act do not form part of the Consolidated Fund and may be used by the agencies or Ministers to defray the costs incurred by the agencies or Ministers in exercising their functions under this Act.' 8 The Order made pursuant to s 67(1) took effect on 1 July 1989 (Govt Gazette No 81, 30 June 1989, p 3834). Clauses 5 and 6 provided relevantly: '5(1) The charges – (a) for the giving of access to a document (being a charge determined under section 24(b) of the Act); and (b) for dealing with an application (being a charge determined under s 24(c) of the Act), are to be calculated on the basis of an hourly rate of $30 per hour. (2) Such a charge is not to be imposed in respect of – (a) the first 20 hours during which – (i) an application under section 17 … of the Act (being an application made by a natural person in respect of documents relating to his or her personal affairs) is dealt with; … 6. The fees and charges payable by – … (e) an applicant whose application related to information that it is in the public interest to make available; are to be half the fees and charges that would otherwise be payable in respect of the application.' 9 As Robinson JM noted in Cianfrano v NSW Department of Commerce [2004] NSWADT 134: '39 The Fees and Charges Order makes no direct mention of or provision for the imposition of advance deposits under section 21 of the FOI Act. The said Order is relevant to the Tribunal's task in considering the advance deposit issue as that issue cannot be divorced from the determination that will be ultimately made by the agency. Accordingly, it cannot be ignored and I have had regard to the Fees and Charges Order in making this determination.' 10 Government policy in relation to charges is summarised in the following way in the public guidelines issued by the Premier's Department: ' How much will it cost me to make a request for Information? Charges fall into two categories – application fees and processing fees. Application fees: A $30 fee covers applications for both personal and non-personal information. Processing fees: Processing fees cover time for locating the information, decision-making, consultation where necessary and any photocopying. A $30 an hour fee covers processing for both personal and non-personal information. However, you are entitled to up to 20 hours of free processing time for request about your personal affairs. There is no upper limit on fees. Rebates: Rebates of 50 percent are offered on all charges: + For pensioners with the Health Benefit Card as well as those with an equivalent income who are under financial hardship; + For non-profit organisations under financial hardship; + Where public interest can be demonstrated; and + For children. 11 The Premier's Department Freedom of Information Manual (3rd ed 1994) pp 24-25 deals with the subject at length, and refers to the Order: ' 2.14. FEES AND CHARGES FOR FOI APPLICATIONS (S.67) The Premier, as the Minister responsible for the legislation, has issued the Freedom of Information (Fees and Charges) Order 1989 which sets out the fees and charges to be applied to all FOI applications. They are binding on all agencies covered by the Act, including local authorities (s.67(3)). No fees and charges other than those set out in the Order may be levied for FOI applications. The hourly rate chosen is intended to cover all costs of processing, locating the information, decision-making, consultation where necessary and any photocopying. Charges should be estimated to the nearest quarter hour according to time taken whatever the task. The initial application fee is intended to cover all costs associated with receiving and commencing to deal with an application, including file registration costs and initial discussion(s) with applicants to clarify the application in terms of s.19. It should be noted that the 1992 amendments to the FOI Act prohibit the charging of fees in respect of time spent in searching for a document that was lost or misplaced. It is important that applicants be kept fully informed of fees and charges, especially with large scale requests and/or where advance deposits may be involved. At no stage should an applicant be "surprised" by charges levied by agencies. If such a "no surprises" approach is adopted, the level of disputation and appeals about charges will be minimised. Fees and charges are summarised below: NATURE OF APPLICATION, APPLICATION FEE, PROCESSING CHARGE Access to records by natural person about their personal affairs $20 - $30 *; $30 per hour after first 20 hours * All other requests $20 - $30 *; $30 per hour * Internal review *** $20 - $40 *; Nil ** Amendment of records Nil **; Nil * subject to 50% reduction for financial hardship and public interest reasons ** refunds may apply as a result of successful internal reviews and successful applications for amendment of records *** No application fees may be charged for internal reviews in relation to amendment of records. Agencies may choose a level of application and internal review fees within the above range. Once chosen this level should be applied to all applications. An individual rate should not be determined for each application. This will facilitate consistency for applicants as well as administrative and accounting ease. In keeping with this Order, the fees and charges adopted allow up to 20 hours free processing for requests by a natural person for access to documents relating to his or her personal affairs. Requests by "corporations" do not attract this reduction. 2.14.1. Fees and charges reductions In making decisions about reductions in fees the following factors should be borne in mind: 1. the purpose of the reduction in fees is to minimise any disadvantage caused by financial hardship which might preclude individuals and/or organisations from obtaining access to, or from amending, information held by the Government; and 2. any discretion in granting such reductions should be exercised in a way consistent with the intentions of Parliament as expressed in s.5(3) that the Act be interpreted and applied so as to further the Objects and that the discretions conferred by the Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. 2.14.2. Financial hardship criteria for individuals A 50% reduction in fees and charges applies in the following circumstances: … (vi) to an applicant whose application relates to information that it is in the public interest to make available. … 2.14.3. Financial hardship criteria for non-profit organisations … 2.14.4. Fees reduction in the public interest The concept of the "public interest" is discussed at some length in chapter 7.9.3. In considering this matter, the central question is again whether the benefit to be gained from releasing the document will flow on to either the public at large or a significant section of the public. Each case will have to be considered on its merits. In the Victorian context, the waiver of fees in relation to release in the public interest is considered in Re Lapidos and the Office of Corrections, 8 January 1990, AAT Victoria. Although the Victorian provision is significantly different from the NSW FOI Act, several of the considerations raised in the above case are relevant. The following points summarise some of the factors which should be weighed up when making decisions in this context: 1. the purpose of reductions in fees in this context is to further the Object of extending, as far as possible, the rights of the public to obtain access to information held by the Government by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public; 2. the discretion in granting a public interest reduction should be exercised so as to foster the disclosure of non-exempt information (see 2.14.2 above); 3. the applicant's capacity (background, qualifications, experience and expertise) to use the information sought; To what extent will the information (document) be communicated, be made public? [The greater the applicant's capacities in this area, the more likely it is that release will enhance the public interest]; 4. whether the applicant has any personal interest in the intended use of the information. [For example, if there is a significant personal or commercial interest or benefit which the applicant may derive from the information, that interest may outweigh any general public interest or benefit]; 5. what is the value/benefit/interest to the public of the information? Will the information contribute to the public understanding of the subject? 6. who is the public? Is it the whole public that is likely to be interested or a section of the whole? How wide is that section of the public? [The wider the section of the public likely to be affected, the greater the likely benefit/interest and the more likely it is that a reduction should be given]; and 7. is the information otherwise available? Has is (sic) been published elsewhere? [If the information is widely available, little additional benefit to the public may accrue from release under FOI].' 12 The above policy statements and guidelines provide the background to a number of the applicant's submissions. For example he submits that insofar as his application is a 'personal affairs' application it should benefit from the reduction in charges provided for such applications. Similarly he submits that insofar as it is a 'public interest' application, it should benefit from the reduction of charges allowed on those grounds. 13 The Tribunal has before it a statement of evidence from Mr Phillip Havenstein, whose responsibilities include FOI Co-ordinator with the Department and submissions from the applicant and the agency. 14 Mr Havenstein informed the Tribunal that on receipt of the application the files affected were quickly able to be identified. He and another officer located and retrieved them in 30 minutes. The files, he said, contained 1565 pages. 15 As is reflected now in a number of cases that have reached the Tribunal, the applicant has been very active in making requests of the key departments involved in the sale of the Flemington Markets to Sydney Markets Limited. The Department of Public Works and Services, whose functions have now been absorbed into the respondent agency, was one of the key departments. 16 Mr Havenstein explained in his statement of evidence, in the Tribunal's view cogently, how much staff time and resources are involved in processing large FOI applications. Simply to prepare the schedule of documents, using a skilled typist, in his estimate takes 2 hours per 100 pages. He then explains at para 16 of his statement the estimated hours attributable to the various clerical stages involved in dealing with a request, divided into the following components: retrieval and examination of documents, supervision of preparation of schedules of access to discovered documents, internal third party consultation, analysis and decision-making (including preparation of brief, etc), copying and numbering documents, typing up of the schedules of access to discovered documents for each file, FOI-administrative tasks – acknowledgements etc, analysis and decision making, external third party consultation, analysis and determination of legal professional documents and analysis and determination decision (sic) professional documents. 17 As noted earlier, the applicant's access application had three components: 'The personal affairs of Robert Cianfrano'; 'administrative and other documents relating to [his] Freedom of Information application of 25 September 2003'; and 'Administrative and other documents relating to Administrative Decisions Tribunal matter, Cianfrano v Department of Commerce [2004] NSWADT 134'. 18 In my view this application was clearly designed to obtain access to the records of the agency relating to its administrative dealings with the FOI request filed 25 September 2003 and any further documents relating to the proceedings that had occurred to that date in connection with that request (another dispute over fees and charges). (1) Fee Reduction: Personal Affairs 19 The expression 'personal affairs' appears in the FOI Act in the exemptions, at clause 6 of Schedule 1, in the following way: ' 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.' 20 The fees and charges order uses as a basic working distinction documents that do not relate to a person's personal affairs and those that do. The philosophy is one that seeks to take a generous approach to applications where individuals are seeking access to records relating to their personal affairs held by government. Typical records of this kind would be police records about an individual, community welfare records about individuals and families, and medical and health records about individuals. The administrative records compiled by an agency in the course of meeting its statutory obligations under the FOI Act do not, in my view, in any meaningful sense involve the 'personal affairs' of the individual. There is no aspect of intrusion into private life or into the intimacy of the individual's affairs involved in the compilation of such records. Obviously some personal details need to be recorded that might be described as being of a 'directory' or 'address' character – name, address, contact details, for example. While these are aspects of identity that are 'personal' to the individual, the presence of such details in administrative records does not make a request one relating to the 'personal affairs' of the applicant, unless there is more. 21 The applicant referred to the landmark observations on the scope of the meaning of 'personal affairs' made by Kirby P in Commissioner of Police v District Court of NSW, commonly known as Perrin's case, (1993) 31 NSWLR 606. There Kirby P was at pains at 620 ff to point out that cl 6 could not be invoked to protect from disclosure to an applicant the identity of public servants named in files in connection with the performance of their official duties. Though such descriptors as a name and a description of the officer's position were 'personal' attributes of the public servant, this type of identification could not reasonably be regarded as relating to the 'personal affairs' of the public servant. Mahoney JA said at 638: 'A person's name would not, I think, ordinarily be, as such, part of his personal affairs. It is that by which, not merely privately but generally, he is known. In some circumstances, it may be personal in the sense of private but that has not been shown to be the case here.' 22 It is not necessary to canvass in detail the other authorities referred to in the submissions by the applicant and the agency. I strongly agree with the final point of the agency's submission – that the mere lodging of an application pursuant to the FOI Act does not, of itself, have the effect that the documents generated in the course of responding to the application, relate to the personal affairs of the applicant. 23 I agree, therefore, with the agency's decision that it was not obliged to allow 20 hours free processing time, on the basis that it was governed by the special provision covering applications relating to personal affairs documents. (2) Fee Reduction: 'Public Interest' 24 As to the 'public interest' argument, again in my view this has no foundation. The agency has, throughout its dealings with the applicant in respect of his principal requests concerning the government decision-making leading to the sale of the Flemington Markets, acknowledged the 'public interest' character of those requests, and taken that consideration into account in applying the fees and charges rules. 25 The applicant argues, in essence, that if the underlying request is of a public interest character then so is a request directed to the way the agency has dealt with the request. In my view there is nothing about this case to suggest that the 'request about the request' should be treated as being in the public interest. What we have, in my view, at this point is a determined applicant using the FOI process as an investigative tool in relation to all dealings between him and the agency with which he is dissatisfied. He is entitled to make the kind of request that he has, but there is nothing about the circumstances that in my view gives his 'request on the request' a public interest character. (3) 'Dealing with an Application' 26 Section 21(1) confines an agency's power to levy charges to 'the costs to the agency of dealing with an application'. There is, therefore, an issue as to what administrative action properly falls within the scope of this expression. 27 The parties referred to the decisions of the Western Australian Information Commissioner going to this question. The WA Commissioner has held that the steps involved in 'dealing with an application' are: + consulting with third parties (but only if consultation is required) + examining the documents, exercising judgment and making a decision about access + deleting exempt matter where appropriate + preparing a notice of decision in the required form where access is denied + providing access in the manner required by the applicant (or in an alternative manner). See Re Hesse and Shire of Mundaring [1994] WAICmr 7, cited with approval in Re Ravlich and Crown Solicitor's Office [2000] WAICmr 8 at [23]. 28 In my view this is a useful guide to administrative action properly within the boundaries of the expression 'dealing with an application'. It is apparent that the list of actions given by Mr Havenstein goes a little further and includes such items as undertaking internal third party consultation and undertaking external third party consultation. The time allowed in respect of each of these items is modest (2 hours in total). Though it is not entirely clear, I will assume that Mr Havenstein is referring to non-mandatory internal and external consultation. I would not go as far as the WA Commissioner and limit the scope of what is covered by the expression 'dealing with an application' to consultation that is mandatory. Depending on the complexity of a request it may be necessary that some consultation that is not mandatory be undertaken. It seems to me, especially in the case of a relatively voluminous request, that it can not be expected that the FOI officer will be in a position to make a determination entirely alone, and without undertaking some consultation with affected areas of the agency or persons inside or outside the agency who may be able to assist the officer in making a determination on the request. 29 I see no reason to interfere with the assessment made by the agency as to the processing time required to deal with this request. 30 In my view the applicant has not demonstrated any arguable basis for setting aside or varying the agency's determination. Respondent's Application for Costs 31 Ordinarily the Tribunal does not make costs orders in proceedings for the review of reviewable decisions. For an order to be made, the party seeking the order must show that the circumstances fall within s 88(1) of the Administrative Decisions Tribunal Act 1997 which provides relevantly: '(1) … the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.' 32 Here the agency refers to the following as 'special circumstances': + The broader history of this matter. The applicant's principal request has already been the subject of a hearing on an advance deposit issue (Cianfrano v NSW Department of Commerce [2004] NSWADT 134) and a two day substantive hearing (6 and 7 June 2005, see now the Tribunal's decisions – Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 and Cianfrano v Director General, NSW Department of Commerce [2005] NSWADT 283)). + The fact that the agency has been brought again to the Tribunal to defend an advance deposit determination. + The number of external reviews sought by the applicant of various determinations made by various agencies pursuant to the FOI Act (the agency said that at the date of the submissions, 2 June 2005, there were 5 cases involving Mr Cianfrano referred to on the Tribunal's web site). + That the present substantive request must inevitably cover documents which he would already have as a result of the processing of the principal request. To that extent the agency is being put to a duplication of effort. + The weakness of his arguments in this case. 33 Some account should, it seems to me, be taken of the level of activity of the FOI applicant. The present applicant has made, clearly, quite voluminous and wide-ranging requests addressed to a number of agencies seeking to dig out the entire documentary history of the Flemington Markets sale. That is his right. Complex government activities may well attract complex and relatively voluminous access requests. But the FOI system depends for its effective operation on a measure of common sense and co-operation both on the part of agencies and applicants. This is particularly so where an applicant is engaged in the kind of complex process I have described. I made a similar observation in another recent decision relating to the applicant: Cianfrano v Director General, NSW Department of Commerce [2005] NSWADT 283 at [16]. The kind of request that has given rise to these proceedings is one that the applicant is entitled to make, but it is an oppressive request in many ways. I agree with the agency that it will inevitably involve the gathering up and analysis of many documents the applicant must already have. The claims that the applicant makes that his request is one to do with his 'personal affairs' was in my view quite specious, and that would have been apparent to an applicant of the applicant's sophistication and experience in FOI matters. The same applies to the public interest claim. In my view a request on a request would rarely, if ever, have any connection with the public interest. 34 The circumstances here do, in my view, amount to special circumstances justifying an order for costs. The applicant should, in my view, pay the agency's costs in respect of the preparation of the written submissions and the attendance at hearing of Ms Mahony. Order 1. Applicant's application for review dismissed. 2. Determination of agency affirmed. 3. Respondent's application for costs allowed. 4. Applicant to pay the respondent's costs of preparation of the written submissions and of attendance at hearing by its legal representative. If the parties do not agree on the amount, the Tribunal pursuant to s 353 of the Legal Profession Act 2004 directs the Manager, Costs Assessment to refer for assessment the costs payable as a result of this order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.