BU and Department of Immigration and Border Protection [2014] AICmr 42 (26 May 2014)

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1 BU and Department of Immigration and Border Protection [2014] AICmr 42 (26 May 2014) Decision and reasons for decision of Privacy Commissioner, Timothy Pilgrim Applicant: Respondent: BU Department of Immigration and Border Protection Decision date: 26 May 2014 Application number: Catchwords: MR14/00022 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) Contents Summary... 1 Background... 2 Decision under review... 3 The discretion to reduce or not to impose a charge... 3 The applicant s contention... 3 Would payment cause financial hardship to the applicant?... 4 Findings... 4 Is giving access to the document in the public interest?... 5 Findings... 6 Decision... 6 Summary 1. I affirm the decision of the Department of Immigration and Border Protection (the Department) of 18 December 2013 to refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act). 1

2 Background 2. On 18 October 2013, the applicant, a freelance writer, made a request under the FOI Act to the Department seeking access to: Complaints made about [omitted named migration agent] directly or indirectly regarding the migration services company, [omitted named company], [omitted named company] or another entity dating back five years. 3. In her FOI request, the applicant requested that fees be waived in full under s 29 of the FOI Act on the grounds of financial hardship. 4. On 23 October 2013, the applicant revised the scope of her request to include: 1. Complaints by individuals or entities (both Australian and international citizens) to MARA regarding the migration agent, [name omitted], [name omitted] is registered with MARA under the number [number omitted]. I do not wish for [name omitted] to be consulted regarding this request. I am happy for the identities of complainants to be redacted. 2. Complaints by individuals or entities (both Australian and international citizens) to MARA regarding the Australian wing of the international visa agency, [company name omitted]. I do not wish for [company name omitted] to be consulted regarding this request. I am happy for the identities of complainants to be redacted. 5. On 3 December 2013, the Department issued an assessment of a charge of $ On 3 December 2013, the applicant contacted the Department by referring to her application for a fee waiver which had accompanied her initial FOI request. 7. On 5 December 2013, the Department requested additional evidence to support the claim of financial hardship and in response the applicant provided a bank statement showing a balance in excess of the cost to process the FOI request. On 12 December 2013, the applicant also sought waiver of charges on the ground that giving access to the documents within scope of the FOI request is in the public interest. 8. On 18 December 2013, the Department wrote to the applicant informing her it was not satisfied that the payment of the charges would cause financial hardship. The Department decided not to reduce the charge on public interest grounds as it did not consider disclosure of the documents to be in the public interest. The Department affirmed the charges estimate of $ On 13 January 2014, the applicant sought IC review of this decision under s 54L of the FOI Act. 2

3 Decision under review 10. The decision under review is the Department s decision on 18 December 2013 not to reduce or waive the charge in respect of the request. The discretion to reduce or not to impose a charge 11. Section 29 of the FOI Act provides for charges to be imposed in respect of FOI requests and the process by which they are assessed, notified and adjusted. Under s 29(1)(b), a preliminary assessment of the amount of the charge is made and the basis of the assessment is outlined by the agency. The applicant may then contend that the charge should be reduced or not imposed (s 29(1)(f)(ii)). The agency must decide whether to reduce or not impose the charge (s 29(4)) and notify the applicant of its decision within 30 days (s 29(6)). 12. Section 29(4) of the FOI Act provides: Where the applicant has notified the agency or Minister, in a manner mentioned in subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not imposed, the agency or Minister may decide that the charge is to be reduced or not to be imposed. 13. In deciding whether to exercise the broad discretion in s 29(4), a decision maker may consider any relevant matter. 1 However, s 29(5) provides that I must consider whether giving access to the documents in question is in the general public interest, or in the interest of a substantial section of the public; and whether the charge would cause financial hardship. The applicant s contention 14. In her application for IC review dated 13 January 2014, the applicant requested a full fee waiver on the grounds that her FOI request was in the public interest and she was experiencing financial hardship. 15. The applicant has made repeated requests to both the Department and the Office of the Australian Information Commissioner (OAIC) for the Department not to consult with third parties in order to process her request. However, as the applicant is seeking to obtain access to documents relating directly to an individual and a business, the Department must not decide to give access to the document unless the person or organisation concerned is given a reasonable opportunity to make submissions in support of the exemption contention In order to ascertain whether all documents the applicant is seeking in her request contain business and personal information, the OAIC contacted the 1 2 Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (Guidelines), [4.46]. Freedom of Information Act 1982 (Cth) ss 27-27A. 3

4 Department on 10 February The Department responded saying that reducing the scope of the FOI request to exclude business or personal information would result in there being no documents remaining within scope. Would payment cause financial hardship to the applicant? 17. The applicant submitted in her IC review application that the charge should be waived on the basis that payment would cause her financial hardship (s 29(5)(a)). 18. The Australian Information Commissioner has issued Guidelines under s 93A to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act. The Guidelines provide: Whether payment of a charge would cause financial hardship to an applicant is primarily concerned with the applicant s financial circumstances and the amount of the estimated charges. Financial hardship means more than an applicant having to meet a charge from his or her own resources. An applicant relying on this ground could ordinarily be expected to provide some evidence of financial hardship The applicant said she does not have the backing of large media organisation and would be forced to pay the charges herself, however without more this is insufficient to warrant waiving charges. 20. When considering whether to waive a debt due to the Commonwealth, the Department of Finance and Deregulation provides the following definition of financial hardship (in the context of deciding whether to waive a debt): Financial hardship exists when payment of the debt would leave you unable to provide food, accommodation, clothing, medical treatment, education or other necessities for yourself or your family, or other people for whom you are responsible The applicant has not submitted to either the Department or the OAIC that she is unable to provide necessities for either herself or her family. In the absence of such information or evidence, I cannot be satisfied that paying the charge as imposed would cause the applicant a sufficient degree of financial hardship to warrant a reduction or waiver of the charge. Findings 22. I am not satisfied that the payment of the charge, or part of it, would cause financial hardship to the applicant. 3 4 Guidelines [4.53] [4.54]. as at 28 February

5 Is giving access to the document in the public interest? 23. By dated 18 February 2014, the applicant requested this review proceed on public interest grounds. 24. Section 29(5)(b) requires me to consider whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public. Part 4 of the Guidelines explains the factors to be taken into account when considering the public interest for the purpose of a decision under s 29(5)(b). 25. There is no presumption that the public interest test is satisfied by reason only that the applicant is a journalist; it is necessary to go beyond the status of the applicant and to look at other circumstances. 26. As the Guidelines explain, the issue is not whether it is in the public interest to reduce or not impose a charge, nor whether it is in the public interest for a particular applicant to be granted access to a document. 5 While the FOI applicant may benefit from disclosure of the documents, the question is whether there is a benefit that will flow more generally to the public or to a substantial section of the public The applicant says this migration agent is a worldwide company and she has documented proof it is acting unethically on a global scale. Further, this company has now resurfaced in Australia under another name leaving people financially and emotionally vulnerable. 28. The applicant s FOI request seeks access to documents recording complaints about an individual as well as a company. This raises the issue of personal privacy which will always be a strong public interest consideration. 29. The Department submitted it is unable to verify the applicants claim that there is additional evidence that the migration agent is practicing unethically and unlawfully. The Department stated that it was not in a position to comment on the applicant s claim that the migration services company is practicing unlawfully in other countries around the world. 30. Deciding whether the giving of access to documents is in the general public interest or in the interest of a substantial section of the public will ordinarily require consideration both of the content of the documents and the context of their release. 7 I have not examined the complaints in question in this IC review; however, there is nothing to suggest that the complaints against this migration agent and company are more frequent or severe than complaints against migration agents in general Guidelines [4.55]. Guidelines [4.56]. Guidelines [4.56]. 5

6 31. The Department has informed the applicant that the Office of the Migration Agents Registration Authority (OMARA) has responsibility for monitoring the integrity and conduct of migration agents, and while journalists may wish to make their own investigations, this in itself does not constitute a factor in favour of waiving or reducing charges. 32. Journalists such as the applicant are free to undertake their own investigations into topics of journalistic interest; however, agencies and Ministers have a right to impose charges in accordance with the FOI Act and the charges regulations. 8 In this case, I am not satisfied that reducing or waiving charges is justified on public interest grounds. Findings 33. I find that the giving of access to the documents requested by the applicant is not in the general public interest for the purposes of s 29(5)(b) of the FOI Act. Decision 34. Under s 55K of the FOI Act, I affirm the Department s decision of 18 December Timothy Pilgrim Privacy Commissioner 26 May 2014 Review rights 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 $816, 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 FOI (Charges) Regulations 1982 (Cth). 6

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