Bradford v Darkinjung Local Aboriginal Land Council [2009] NSWADT 41

CITATION: Bradford v Darkinjung Local Aboriginal Land Council [2009] NSWADT 41

DIVISION: General Division

APPLICANT Jeffrey John Bradford PARTIES: RESPONDENT Darkinjung Local Aboriginal Land Council

FILE NUMBER: 083228

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 17 December 2008

DATE OF DECISION: 26 February 2009

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Access to documents – fees and charges

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

CASES CITED: Cianfrano v Department of Commerce [2005] NSWADT 297

APPLICANT In person REPRESENTATION: RESPONDENT P Woods, solicitor

ORDERS: The determination of the agency is affirmed.

REASONS FOR DECISION 1 On 19 May 2008 the applicant applied to the Darkinjung Local Aboriginal Land Council (DLALC) under the Freedom of Information Act 1989 (the FOI Act) for access to the following documents: - copies of all DLALC recent Board meetings but particularly minutes of Board meetings that occurred on March 12 and April 10 2008 - all documents, discussion notes and consultation reports in relation to the DLALC property presently occupied by Mr Jack Smith - the exit strategy/report that was prepared by Mr Peter Hillig under his terms of reference prior to his cessation as administrator on 2 May 2008 - the DLALC's annual audit reports for the years ending 30 June 2005, 2006 and 2007 - records noting fees and payments in the nature of fees and disbursements paid to Mr Hillig and/or Mr Hillig's firm known as Smith Hancock - records of fees and payments in the nature of fees and disbursements including Counsel's costs paid or committed to be paid to: 1. the firm of Patrick Woods and Co 2. any other law firm 3. Mr David Murr 4. Mr David Smallbone - records of letters of engagement, tender documentation, fees and payments in the nature of fees and disbursements paid to any consultants (other than legal advisers) Mr Hillig engaged during the period of his administration for the performance of any services. 2 The respondent did not make a determination, and on 25 June 2008 the applicant requested internal review of a deemed refusal. There was no response, and on 28 July 2008 the applicant applied to the Tribunal for review. 3 At a planning meeting held on 16 September 2008 the respondent's representative stated that the respondent had on 28 July 2008 advised the applicant of its determination to provide access subject to payment of a charge of $300. The applicant had refused to pay the charge. I remitted the matter to the respondent under section 65 of the Administrative Decisions Tribunal Act 1997 (ADT Act) for a formal determination. On 14 October 2008 the respondent's representative notified the applicant (through his representative) of its determination that upon payment of an additional processing fee of $300 it would release the following documents: 1. Minutes of the DLALC Board meeting held on 2 May 2008 [there being no Board meetings held on 12 March 2008 or 10 April 2008, the Board only coming into effective existence when the former Administrator's appointment ended on 1 May 2008] 2. Documents available concerning a proposal to construct a new home in place of the one occupied by Jack Smith 3. Report of the former Administrator dated 12 May 2008 and its annexures A to F, subject to some minor deletions of exempt personal or financial information that is not available 4. Audit reports for the DLALC for the years 2005, 2006 and 2007 4 In relation to the request for access to records of payments made to Mr Hillig and his firm Smith Hancock during his term as Administrator, the determination stated: [The applicant] will be aware, or should be as a former CEO of NSWALC, that Mr Hillig and his form were not paid by DLALC during the Administration. Mr Hillig's fees, and those of his firm, were paid by the New South Wales Aboriginal Land Council ("NSWALC"). NSWALC then became entitled to have itself reimbursed by DLALC. Details of all those fees were published in Reports to Members posted to Mr Bradford, and to all other members of DLALC, from time to time during the Administration. To assist your client, however, my client is prepared to provide details of its reimbursement to NSWALC of fees for Mr Hillig/Smith Hancock, as well as payments made to DLALC's Solicitors and consultants, by providing the relevant accounting ledgers. 5 The respondent provided submissions in support of its argument that it could impose the charge of $300. 6 A further planning meeting was scheduled for 28 October 2008. On that occasion, the respondent's representative was not available (it subsequently emerged that he had been stuck in traffic without his mobile phone). I made directions for further progress of the matter, directing the respondent to file and serve an affidavit providing evidence of the steps taken to locate and consider the documents requested by the applicant, including the time taken, and directing the applicant to file and serve written submissions in support of his argument that the charge of $300 is unreasonable. The matter was adjourned for a further planning meeting on17 December 2008. On that occasion the respondent's representative stated that he relied on his affidavit filed on 28 November 2008 and previous correspondence. The applicant stated that he relied on his submission dated 25 November 2008. Both parties agreed to have the matter determined on the papers. Respondent's submissions and evidence 7 The respondent's submissions provided background to the applicant's request for access. The applicant was Chairperson of the DLALC until he lost that position when an Administrator was appointed by the Minister for Aboriginal Affairs for a two-year period ending on 1 May 2008. During the period of Administration the DLALC was in litigation with the applicant, which ended when he resigned his membership of DLALC and gave an undertaking never again to apply for membership. Ten days after giving that undertaking, the applicant made the FOI application. 8 In the submission filed on 17 October 2008 the respondent's representative noted that the applicant had objected to paying the charge on the basis that during his time as DLALC Chairperson he had implemented a document retrieval system for the DLALC that would have quickly made the required documents available. In response, the representative stated: Subsequent inquiries I have made inform me that the document retrieval system purchased by Mr Bradford (during his tenure as Chairperson of DLALC) at a cost of more than $20,000 has never been implemented (having been found to be too cumbersome, expensive and complicated for a small organisation like DLALC). As such, the fees DLALC sought to charge are quite modest and having regard to the extent of the work, including legal work, made necessary by the application and its pursuit into the ADT, are now well short of the full cost of DLALC complying with its FOI obligations. 9 The submission referred to Supreme Court litigation, and concluded: DLALC is weary of Mr Bradford and his continuing interference in its affairs. Control of DLALC has passed permanently from him to others. It won't assist the recover process if the entitlement of DLALC to charge proper FOI fees for his intrusions into its affairs are watered down in the process of the ADT considering his application. The documents are available. The modest fee imposed should stand. 10 The respondent's representative provided an affidavit in which he stated: The time taken, both by the former Acting CEO of the Respondent, Mr Roger Sentence, and this deponent, to comply with the applicant's FOI request have involved each of us in significant more than 10 hours of effort. The proposed charge of $300 is a token amount, and is unlikely to be within an order of magnitude of the actual cost of Mr Bradford's FOI application, that I note was made a bare 10 days after he resigned his membership of the respondent, and gave the Respondent an undertaking that he would never again apply for membership. I also note that Mr Bradford was suspended from attending meetings of the Respondent, and voting, for three years at the time of his resignation. 11 The letter dated 28 July 2008 addressed to the applicant by the Acting Chief Executive Officer of the respondent states: The processing of your application has taken 10 hours, and so a processing fee of $300 dollars is appropriate (calculated as 10 hours x $30.00). Applicant's submissions 12 The applicant provided a copy of a letter dated 11 August 2008 written by him to the Acting CEO of the respondent in response to the letter dated 28 July 2008. In that letter the applicant states: In my opinion based on many years working in the Land Council system and with an intimate knowledge of DLALC's systems, I believe a processing fee of $300 is exorbitant and unnecessary. 13 In his written submission dated 25 November 2008, the applicant stated: In regard to this matter overall I note, with some concern, that Mr Woods has provided an affidavit concerning the reasons why DLALC believe it is necessary to charge me an amount of $300 to provide information that I as a previous Chairperson know to be readily available. I have made this point in earlier correspondence which I do not consider is necessary to repeat in this correspondence other than to say that the DLALC is not an organisation that has large amounts of documents it needs to file and then retrieve. In fact I know the opposite to be the case. 14 The applicant stated his concern that the respondent's representative, and not the CEO or a member of DLALC staff, had provided an affidavit. Consideration 15 The power to impose fees and charges under the FOI Act is conferred by section 67, which states: 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. (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. 16 At the time of lodging the application to the Tribunal for review, the respondent had not made a determination of the request for access. The application was, therefore, an application for review of a deemed refusal. When it became clear that the respondent was prepared to provide access to certain documents, subject to a charge, I remitted the matter for reconsideration and formal determination under section 65 of the ADT Act. Under section 65(4) the application for review is taken to be an application for review of the decision of the respondent notified by letter dated 14 October 2008, to provide access to certain documents on payment of a charge of $300. That determination does not refer in terms to section 24, however it is clear that the respondent was exercising the power in section 24(1)(b) or (c) to determine the charge payable in respect of the giving of access or for dealing with the application. 17 The Tribunal's jurisdiction to review a determination under the FOI Act is conferred by section 53 of the FOI Act, which relevantly provides: (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. … (3) For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that: … (iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or (v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or … 18 The Tribunal's task is to determine the correct and preferable decision, having regard to any relevant factual material and any applicable law: section 63 ADT Act. In considering whether the decision of the respondent to impose a charge of $300 is the correct and preferable decision, the Tribunal must give effect to any relevant Government policy: section 64 ADT Act. In FOI matters, the burden of establishing that the determination is justified lies on the agency: section 61 FOI Act. 19 The Order made pursuant to the power conferred by section 67 of the FOI Act (the Freedom of Information (Fees and Charges) Order 1989) took effect on 1 July 1989. Clauses 5 and 6 of this Order state: Charges to be imposed 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 section 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 or 36 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; or (ii) access to a document the subject of such an application is given; or (b) any application under section 34 of the Act. (3) Such a charge is to be calculated on the time spent by the agency's or the Minister's staff in actually dealing with the application or giving access to the document, calculated to the nearest quarter of an hour. Reduction of fees and charges 6. The fees and charges payable by – (a) an applicant who holds a pensioner health benefits card issued by the Commonwealth; or (b) an applicant whose weekly income is less than the maximum weekly income allowable, under the Social Security Act 1947 of the Commonwealth, to holders of such a card; or (c) an applicant who is under the age of 18 years; or (d) an applicant who is applying on behalf of a non-profit organisation that can demonstrate financial hardship; or (e) an applicant whose application relates 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. 20 The NSW FOI Manual (published by the Department of Premier and Cabinet and the NSW Ombudsman in August 2007) states in relation to charging for access under the FOI Act: 6 Fees and Charges 6.1 Charging for access under the FOI Act 6.1.1 The freedom of Information (Fees and Charges) Order 1989 (published in the NSW Government Gazette No 81 of 30 June 1989) sets out the fees and charges to be applied to all FOI applications and binds all agencies. 6.1.2 No fees and charges other than those set out in the Order may be levied for FOI applications. The hourly rate is intended to cover all costs of processing, locating the information, decision-making, consultation (where necessary) and any photocopying. The Act prohibits the charging of fees in respect of time spent in searching for a document that was lost or misplaced. 6.1.3 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 (including as required by s.19). … 6.1.10 It is important that notices requiring advance deposits and notices of determination include reasonable detail of the way in which the costs will be or have been incurred. It is essential that agencies have full back-up documentation on file to validate the final charges. 21 The Manual discusses the grounds for a 50% reduction in fees and charges, including the financial hardship and public interest criteria; grounds for full refunds; advance deposits; and consultation in relation to charges and advance deposits. In relation to the latter, the Manual states: 6.5.4 The principles which should govern the amount of any charge are that the agency: (1) should not charge for time spent due to any inefficiencies in the records-keeping and retrieval systems, or due to any other ineffectiveness in the agency's FOI procedures or practices; and (2) should do everything it can to reduce the costs to the applicant by devising the cheapest possible procedure for processing the application; and (3) should work with the applicant to narrow potentially expensive applications as far as is acceptable to the applicant; and (4) should think carefully before charging a large amount but supplying only a few documents - if this is the likely outcome of an FOI request, agencies should consider imposing an advance deposit and warning the FOI applicant that the preliminary view of the agency is that few documents will be identified for release. … 22 The application for access to documents was not made in respect of documents relating to the applicant's personal affairs. There was no claim based on the public interest. While the applicant stated in his submission of 25 November 2008 that he is a pensioner, there is no indication from his initial application, internal review request, or application to the Tribunal that he is claiming a reduction in charge based on financial circumstances. The applicant's objection is based on the amount of the charge. His central argument is that it should not have taken the 10 hours claimed by the agency. 23 The basis for determining a charge was considered by the President of the Tribunal, O'Connor DCJ, in Cianfrano v Department of Commerce [2005] NSDWADT 297. The President referred in that decision to decisions of the Western Australian Information Commissioner on what administrative action properly falls within the scope of an agency's costs in dealing with an application for access to documents. Those decisions indicate 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). 24 The President stated: 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. 25 In Cianfrano the respondent had provided evidence of the time taken to locate and retrieve documents from files containing 1565 pages, and the estimated hours attributable to the various clerical stages involved in dealing with a request. The agency's assessment of processing time was accepted. 26 The request for access in this matter covered a broad range of documents. Some of these (such as the annual audit reports) may have been more readily retrieved than others, such as the request for "all documents, discussion notes and consultation reports" in relation to a DLALC property. The applicant submits that it should not have taken 10 hours to locate the documents because of the document retrieval system purchased while he was Chairperson of DLALC. The evidence from the respondent, however, is that this system was not implemented. It is clear from the terms of the letter dated 28 July 2008 that the administrative tasks involved in dealing with the applicant's request included location and retrieval of documents, and consideration of whether part of one document contained exempt commercially sensitive or personal material. While the Acting CEO of the respondent states in the letter dated 28 July 2008 that the processing of the application had taken 10 hours, there is no breakdown of the steps taken. The respondent's position is complicated by the statements of its representative about the timing of the request and the applicant's motives for initiating the request. The Freedom of Information (Fees and Charges) Order 1989 makes it clear that a charge must be calculated on the basis of the time actually spent in dealing with the application. The FOI Manual states that the hourly rate is intended to cover all costs of processing, locating information, decision-making and photocopying. An agency is not entitled to impose a charge in order to deter an applicant from pursuing the legal entitlement conferred by section 16 of the FOI Act to request access to documents, or to seek review in the Tribunal. 27 The strongest evidence as to the time taken to deal with the applicant's application is in the letter from the Acting CEO of the respondent of 28 July 2008. While not as comprehensive as it could have been, it is expressed as a statement of the time taken to process the application. The applicant's basis for arguing that the charge is unreasonable is his assertion that it should not have taken 10 hours to locate and consider the documents because of the document retrieval system acquired while he was Chairperson. The respondent has explained why that is not the case. I am not satisfied that the charge imposed is unreasonable, and the decision of the respondent should be affirmed. Order 28 The determination of the agency is affirmed.