Smith and Department of Broadband, Communications and the Digital Economy  AICmr 2 (6 January 2012)
Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple
|Applicant:||Tony Smith MP|
|Respondent:||Department of Broadband, Communications and the Digital Economy|
|Decision date:||6 January 2012|
|Related IC review:||Fletcher and Department of Broadband, Communications and the Digital Economy  AICmr 1|
|Catchwords:||Freedom of Information – Charges – Whether agency should exercise discretion to reduce or not impose charge – (CTH) Freedom of Information Act 1982 s 29(5)(b)|
1. I affirm the decision of the Department of Broadband, Communications and the Digital Economy (the Department) of 15 June 2011 to reduce the charge applicable under s 29 of the Freedom of Information Act 1982 (the FOI Act) by 50%.
2. Lazard Australia Pty Limited (Lazard) advised the Australian Government on the arrangements entered into between the Government, Telstra Corporation Limited (Telstra) and NBN Co Limited regarding the national broadband network.
3. On 6 April 2011, Mr Tony Smith MP, the federal member for Casey, applied to the Department for access to documents relating to or detailing:
- the date Lazard was appointed by the Department to advise the Government through its agreement with Telstra to participate in the national broadband network
- the fee Lazard has been paid to date, and what fees will be paid in the future
- the timetable detailing the appointment process prior to the appointment of Lazard, including:
- which other firms were considered
- the composition of the selection panel
- which ministers and/or ministerial staff [were] informed of the appointment of Lazard
- when were ministers and/or ministerial staff informed of the appointment of Lazard; and
- whether any (and if so, which) ministers and/or staff were involved in the selection process and/or part of the selection panel
- any records of contact, emails or correspondence between ministers and ministerial staff regarding the appointment of Lazard
- a copy of the reports of the selection panel
- copies of the submission from Lazard and any other firms which tendered for the appointment.
4. On 20 April 2011, the Department provided Mr Smith with a preliminary estimate of a charge of $3271.76, which included over 160 hours of decision-making time. Mr Smith wrote to the Department on 16 May 2011 requesting that the charge be waived under s 29(4) of the FOI Act on public interest grounds.
5. On 15 June 2011, the Department advised Mr Smith of its decision to reduce the charge by 50% to $1635.88. This, the Department said, reflected the general public interest in the release of the documents, balanced against the amount of work required to process Mr Smith's request.
6. On 11 July 2011, Mr Smith sought IC review of this decision under s 54L of the FOI Act.
7. Mr Smith has not contended that the charge has been wrongly assessed, and there is no reason to doubt the accuracy of the Department's estimate. Rather, he has challenged the Department's decision not to exercise, at his request, the discretion conferred on it by s 29(4) of the FOI Act to not impose a charge at all.
8. The decision under review is the decision of the Department on 15 June 2011 to reduce the charge payable by 50% to $1635.88.
9. Mr Smith's FOI application was in almost identical terms to an application made by Paul Fletcher MP, the federal member for Bradfield. Mr Fletcher's application is the subject of another IC review: Fletcher and Department of Broadband, Communications and the Digital Economy  AICmr 1.
10. In Mr Fletcher's case, as in Mr Smith's case, the Department reduced the assessed charge by 50%. In Mr Fletcher's case, I agreed with the Department's decision. For the same reasons that I gave in Mr Fletcher's IC review, I also agree with the Department's decision in Mr Smith's IC review.
11. Under s 55K of the FOI Act, I affirm the Department's decision of 15 June 2011.
Dr James Popple
Freedom of Information Commissioner
6 January 2012
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.
An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.
 As a practical matter, Mr Smith and Mr Fletcher won't both have to pay this reduced charge. If one of them proceeds with his application, the Department must make publicly available on its disclosure log (s 11C) the documents it gives him access to, unless an exception applies (s 11C(1)).