Australian Capital Territory (Chief Minister's Department) v Coe [2007] ACTSC 15 (7 March 2007)

Last Updated: 7 May 2008

AUSTRALIAN CAPITAL TERRITORY (CHIEF

MINISTER'S DEPARTMENT) v EVA COE

[2007] ACTSC 15 (7 March 2007)

APPEAL - Administrative Law - Freedom of Information - access may be refused where giving access would divert resources - whether limited to work involved in locating and collating documents.

Freedom of Information Act 1989, s 3, s 23

Administrative Appeals Tribunal Act 1989, s 46

Supreme Court Rules, O 84

Freedom of Information Act 1982 (Cth), s 24

Administrative Appeals Tribunal Act 1989

Administrative Decisions (Judicial Review) Act 1989

Australian Capital Territory (Self-Government) Act 1988, s 34

Legislation Act 2001, s 139

Re Shewcroft and Australian Broadcasting Corporation (1985) 7 ALN N307

Re Timmins and National Media Liaison Service (1986) 9 ALN N196

Re Carver and Department of Prime Minister and Cabinet (1987) 12 ALD 447

Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully [1952] HCA 4; (1952) 85 CLR 159

Northrope v City of Hawthorn [1941] VLR 178

Freedom of Information Act 1982: Report on the Operation and Administration of the Freedom of Information Legislation, 1987 Report by the Senate Standing Committee on Legal and Constitutional Affairs

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 17 of 2006

Judges: Connolly J

Supreme Court of the Australian Capital Territory

Date: 7 March 2007

IN THE SUPREME COURT OF THE )

) No SCA 17 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: AUSTRALIAN CAPITAL TERRITORY (CHIEF MINISTER'S DEPARTMENT)

Appellant

AND: EVA COE

Respondent

ORDER

Judges: Connolly J

Date: 7 March 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

1. This is an appeal on a question of law from a determination of the Administrative Appeals Tribunal (the Tribunal) concerning the scope of the Freedom of Information Act 1989 (the FOI Act). The Tribunal on 22 March 2006 set aside the appellant's decision that it did not have to comply with a request for access to documents concerning Aboriginal land rights in the Australian Capital Territory on the basis of the provision of the Act (s 23) that permits access to be refused in cases where complying with the request would unreasonably divert resources or interfere substantially with the performance of agency operations. There is an appeal from a decision of the Tribunal to this Court on a question of law pursuant to s 46 of the Administrative Appeals Tribunal Act 1989. In accordance with O 84 of the Supreme Court Rules, as they then stood, leave to appeal was granted by order of the Master on 19 May 2006.

The issue to be determined on this appeal

2. The appeal turns on the question of the appropriate interpretation to be given to s 23 of the FOI Act. Section 23 relevantly provides:

Requests may be refused in certain cases

23 (1) Where -

(a) a request is expressed to relate to all documents, or to all documents of a specified class, that contain information of a specified kind or relate to a specified subject matter; and

(b) the agency or Minister dealing with the request is satisfied that, apart from this subsection, the work involved in giving access to all the documents to which the request relates would substantially and unreasonably divert the resources of the agency from its other operations or would interfere substantially and unreasonably with the performance by the Minister of his or her functions, as the case may be, having regard to the number and volume of the documents and to any difficulty that would exist in identifying, locating or collating the documents within the filing system of the agency or of the office of the Minister;

the agency or Minister may refuse to grant access to the documents in accordance with the request without having caused those processes to be undertaken.

3. The request for access was for "all documents relating to native title in the ACT including, either direct or indirect and funding (in relation to native title in the ACT)". The Chief Executive of the appellant sought clarification of the extent of this request, and by letter of 9 June 2005 the respondent stated that her request covered:

(1) All documents/records regarding Native Title in the Australian Capital Territory. This includes direct or indirect funding.

...

(2) The area of Native Title would be the whole of the Australian Capital Territory.

4. On 1 July 2005 the request for access was refused pursuant to s 23, and an internal review of this decision affirmed the original decision on 3 August 2005. The evidence before the Tribunal was that the appellant had identified some 143 files which would fall within the request, of which 73 were files of the Chief Minister's Department, and 62 were files of the Department of Justice and Community Safety. The balance was held in other agencies. About 100 of these files were stored with an external contractor, who would charge about $700 to retrieve the files held by it, and the balance, which was stored with ACT Record Services, could be retrieved for a cost of about $150. A senior officer of the appellant gave evidence that it would involve about 20 hours for a junior officer to search for and retrieve the files.

5. This officer went on to give evidence that in order to process the request, examine the documents and make appropriate decisions as to whether or not the documents could be released to the appellant, it would involve a total of some 2,530 hours for a senior officer, or the equivalent of 233 full-time working days (AB 6). In addition, some 144 days of full-time work would be required from a junior officer to support the senior officer.

6. The Tribunal, following an earlier decision of the Commonwealth Administrative Appeals Tribunal dealing with the equivalent section of the Freedom of Information Act 1982 (Cth) (the Commonwealth FOI Act), held that this section was limited to the burden the request for documents would place on the agency to, in effect, find and identify the documents within the ambit of the request, and did not extend to the time that could be taken up in actually processing the request. Accordingly, the Tribunal set aside the decision under review, and remitted the matter for determination according to law. The appellant seeks to set this decision aside, and urges this Court to rule that, on its correct interpretation, s 23 does permit a decision maker to take into account the time and resources that would be taken up in processing the request, as well as the time and resources that would be taken up in identifying the relevant documents.

7. The Act bears a close similarity to the Commonwealth FOI Act. Before self-government in 1989, all requests for access to documents relating to the governance of the Territory would have been dealt with under Commonwealth law. Prior to self-government, the Commonwealth, by ordinance, enacted as Territory laws the substance of the Commonwealth administrative law regime comprising a Freedom of Information Act, an Administrative Appeals Tribunal Act 1989, and an Administrative Decisions (Judicial Review) Act 1989. Upon self-government, and pursuant to s 34 of the Australian Capital Territory (Self-Government) Act 1988 these ordinances became Acts, and have been subject to subsequent review and amendment by the Legislative Assembly for the Australian Capital Territory.

8. Section 23 of the FOI Act was clearly modelled on, and followed the precise language of, s 24 of the Commonwealth FOI Act. The effect of s 24 seems to have been first considered by the Commonwealth Administrative Appeals Tribunal in Re Shewcroft and Australian Broadcasting Corporation (1985) 7 ALN N307. In an application for access to certain Board documents the Tribunal had to determine whether s 24 was limited to resource implications of locating the documents, or included the resource implications of considering whether the documents were exempt from release under the Commonwealth Act. In holding that the latter factor was a relevant consideration, Senior Member Prentice said (at N309):

I construe it [s 24] as pointing to three factors for consideration before a decision can be made whether access should be given. Firstly, the documents which accord with the request must be identified, located and collated. Secondly, regard must be had to their number and volume. Thirdly, and this I deduce as a matter of commonsense but also from the insertion of the parenthetical phrase `apart from this sub section', that regard must be had to the work potentially involved in scrutinizing all the material page by page and possibly line by line, to decide whether other sections of the Act require claims of exemption to be made under a variety of heads and whether deletions could be made to protect the exemptions and give partial access.

9. The question again arose before the Commonwealth Tribunal in Re Timmins and National Media Liaison Service (1986) 9 ALN N196. On this occasion the Tribunal decided not to follow Shewcroft, and instead held that the work involved in deciding whether a claim of exemption could be made out is not a factor to be considered in the application of s 24. In that case the Tribunal (Deputy President Todd, Mr Steele Craik and Mr Grant, Members) said (at N199):

It is accordingly our opinion that where an agency has been able, without substantial and unreasonable diversion of resources, (and thus without having had to seek recourse in that behalf to section 24(1)), to identify, locate and collate the relevant documents, but has found the task of considering whether those documents are in whole or in part exempt one which does involve substantial or unreasonable diversion of resources, s 24(1) offers that agency no assistance.

We are aware that the view which we have expressed runs counter to what the Tribunal found in Re Shewcroft and Australian Broadcasting Corp (1985) 7 ALN N307. With the greatest of respect, we have not found in the words "apart from this sub-section" appearing in s 24(1)(b) [of the Commonwealth FOI Act] ground for considering that regard must be had under that provision to the work potentially involved in relation to claims for exemption. We read those words as meaning "without the benefit of or resort to this sub-section". In general terms we should have thought that if it had been intended that the terms of s 24(1)(b) should embrace the work involved in deciding whether claims of exemption should be made, then a reference to that could be expected to have been made in terms as explicit as those used in relation to identification, location and collation of documents.

10. This is the view that seems to have thereafter prevailed in the Commonwealth Administrative Appeals Tribunal, although the matter does not seem to have ever been resolved in the Federal Court. In Re Carver and Department of Prime Minister and Cabinet (1987) 12 ALD 447, the Tribunal (Deputy President Hall, Dr Renouf and Mr Taylor, Members) said at 458:

... where an agency has been able, without substantial and unreasonable diversion of its resources, to identify the documents to which access is sought, the agency is not entitled under s 24 to refuse access on the ground that the task of considering whether the documents are in whole or in part exempt would involve substantial or unreasonable diversion of resources (see Timmins and National Media Liaison Service).

11. In the decision under review, President Peedom expressly agreed with the decision in Timmins, and applied that reasoning to the matter before him (AB 10). It seems to me that he was right in so doing both on the basis of established authority and on the terms of the section, which refer to difficulty in "identifying, locating or collating the documents".

12. At the time that the Act was enacted in this Territory in 1989, s 23 had, it seems to me, an established meaning, that had been settled in the Commonwealth Administrative Appeals Tribunal, and in enacting the identical language to s 24 of the Commonwealth FOI Act, the legislature must be presumed to have intended the same settled meaning to be applied to that language.

13. In Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully [1952] HCA 4; (1952) 85 CLR 159 the High Court (Dixon, Williams and Webb JJ) observed (at 174) that:

... where the language of a statute has received judicial interpretation, and Parliament again employs the same language in a subsequent statute dealing with the same subject, there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which has been judicially attributed to it in the meantime. But this principle affords at most a valuable presumption as to the meaning of the language employed. It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous.

14. Mr Hanks QC, for the appellant, made the submission that a degree of caution should be adopted to this well known approach in considering the effect to be given to determinations by an Administrative Tribunal. In Northrope v City of Hawthorn [1941] VLR 178, the Full Court of the Victorian Supreme Court made the observation (per Lowe and Gavan Duffy JJ) that this presumption was confined to judicial determinations by superior courts, stating (at 182-183):

The doctrine imputes to the Legislature knowledge of the decision given: but we do not suppose that the Courts have ever thought that the individual members of the Legislature or even of cabinet have without specific instruction such knowledge. The commonsense of the matter is that the Legislature will be informed by some or one of its members learned in the law or by the Crown advisers of what has been decided and in the light of that information will act or refrain from acting. Such advice would, we think, certainly have regard to the fact that previously the presumption has only been applied in the case of decisions of superior Courts. If attention were drawn to a decision of an inferior Court we should suppose that the Legislature would be advised that the decision did not require to be dealt with by the Legislature. Consequently we think that no safe inference can be drawn from the successive re-enactments of the notice section in the same language after the interpretation put on it by the County Court Judge.

15. Mr Walker, for the respondent, noted that this decision concerned a previous interpretation placed on a notice provision in the context of private law personal injury claims, which would not necessarily come to the attention of the executive government or the legislature, whereas a ruling by the Commonwealth Administrative Appeals Tribunal on the scope of a provision of the Freedom of Information Act would be a matter that the Commonwealth government might be presumed to be aware of. Moreover, in this context, there is material to demonstrate that the effect of the Timmins decision was considered by the Parliament. A 1987 Report by the Senate Standing Committee on Legal and Constitutional Affairs entitled Freedom of Information Act 1982: Report on the Operation and Administration of the Freedom of Information Legislation was before the Tribunal (AB 146-161). It is clear that the Senate Committee considered Timmins to represent the then existing law. At [7.72] the Report states:

The time spent by agencies in examining documents to determine if they are exempt, and in third party consultation cannot be included in the estimate of workload for section 24 purposes.

16. Timmins was cited as authority for this view. The Committee noted that there were a number of submissions recommending the alternative approach, and concluded at [7.75 ] that:

The Committee recommends that section 24 be amended to permit regard to be had to the resources likely to be spent in both consultation with third parties and in examining documents for exempt matter.

17. It seems to me that, at the time of the enactment of the Act, the effect of s 24 of the Commonwealth FOI Act, re-enacted as s 23 of the Territory Act, was well established and understood, and the Senate Committee had indeed recommended an amendment to s 24 to give effect to the contrary view. Despite this recommendation, the Commonwealth enacted the Territory ordinance using the established wording, and it seems to me that this indicates a clear intention that the then established meaning of that form of words would be reflected in the Territory Act.

18. The Commonwealth Act was amended in 1991 to give effect to the Senate Committee Report. The phrase "the work involved in giving access to all the documents" was deleted and substituted with "the work involved in processing the request". The Explanatory Memorandum to the 1991 amendment states that this was intended to give effect to the 1987 Report, and particularly that the Bill would "widen section 24 of the Act allowing refusal of requests for access to documents if processing the requests would involve a substantial or unreasonable diversion of agency resources" (AB 127). Mr Walker, in his written submissions, notes that the same form of words, "processing" the request, has been used in the equivalent provision of the Victorian Freedom of Information legislation since 1993 and, significantly, it seems to me, a Bill to amend s 23 of the FOI Act to like effect was introduced to the Legislative Assembly in this Territory on 23 November 2006.

19. The Legislation Act 2001 (ACT) requires a court considering the meaning of any ACT legislation to adopt an interpretation that best achieves the purposes of the legislation (s 139). The FOI Act by its terms has the objects of (s 3):

... to extend as far as possible the right of the Australian community and, in particular, the citizens of the Territory, to access to information in the possession of the Territory by -

...

(b) creating a general right of access to information in documentary form in the possession of Ministers and agencies, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies

(2) The provisions of this Act shall be interpreted so as to further the objects set out in subsection (1) and to ensure that discretions conferred by this Act are exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

20. It seems to me that the combined effect of the Legislation Act, and the interpretation provision within the FOI Act, is to favour an interpretation that facilitates the disclosure of information, rather than one which facilitates a refusal of access. The view adopted by the Commonwealth Tribunal in Timmins, and adopted by President Peedom, achieves this objective. The effect of this ruling was well known when the Act was created, and although the Commonwealth has subsequently amended its Freedom of Information legislation, the ACT law remained in the older form.

21. The appeal is dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 7 March 2007

Counsel for the Appellant: PJ Hanks QC with D Jarvis

Solicitor for the Appellant: ACT Government Solicitor

Counsel for the Respondent: Mr P Walker

Solicitor for the Respondent: Legal Aid Office (ACT)

Date of hearing: 26 February 2007

Date of judgment: 7 March 2007