Case note: 'BAZ' and Australian Trade and Investment Commission (Freedom of Information)

In this recent decision of the Freedom of Information Commissioner, Alice Linacre (the Commissioner) discusses whether the Australian Trade and Investment Commission (Austrade)’s decision to find the applicant liable to pay a charge of $560.00 under s 29 of the Freedom of Information Act 1982 (Cth) (FOI Act) was the correct and preferable decision in the circumstances. This decision provides an example of where a charge is waived due to the general public interest.

Background

On 3 March 2025, the Applicant made a request to Austrade for various documents relating to the Export Market Development Grants Program (EMDG Program).

On 20 March 2025, the Austrade notified the applicant that they were liable to pay a charge of $560.00 for processing the request.

On 4 April 2025, the Applicant responded to the charges notice and excluded certain types of material from their request.

On 16 April 2025, Austrade decided not to waive or reduce the charge.

Section 29 of the FOI Act

Section 29 of the FOI Act provides discretion for a charge to be imposed in respect of:

• a request for access to a document, or
• the provision of access to a document under the FOI Act.

In exercising that discretion, the agency or minister should take account of the ‘lowest reasonable cost’ objective stated in the objects of the FOI Act.

Paragraph [4.4] of the FOI Guidelines states that agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charge under the FOI Act.

The legislative framework for charges and related aspects of the FOI Guidelines is discussed at length in the decision of ‘ABX’ and Department of Veterans’ Affairs (Freedom of Information) [2022] AICmr 57 (ABX) where the Commissioner provided that discretionary power to decide that a charge is to be reduced or not to be imposed only arises if:

• there has been an exercise of the first discretionary power with the result that an applicant is liable to pay a charge; and
• the applicant contends in accordance with s 29(1)(f)(ii) that the charge notified to them by way of preliminary assessment under s 29(1) has been wrongly assessed or should be reduced or not imposed, or both.

The Commissioner was satisfied that Austrade exercised its discretionary power with the result that the Applicant was liable to pay a charge. The question to be determined was whether the charge ought not to have been imposed as contended by the applicant under s 29(1)(f)(ii) of the FOI Act.

Financial hardship and the public interest test

In assessing whether the decision under review is the correct and preferable decision, the Commissioner considered the financial hardship test, and the public interest test set out in s 29(5) of the FOI Act.

The public interest test in s 29(5) of the FOI Act does not replicate the public interest test in s 11A(5) of the FOI Act but simply asks whether the giving of access to the document or documents sought by an applicant is in the general public interest or in the interest of a substantial section of the public.

The parties’ submissions 

Austrade submitted that the charge should be maintained because:

• it reflected the lowest reasonable cost objective and was not a full cost recovery nor exceeded the actual cost of the work involved
• the largest part of the time estimate (30 hours) related to creating spreadsheets in response to the applicant’s request
• all of the material the Austrade identified was relevant to the request, and a large volume of material contains commercially sensitive material for Austrade and third party organisations
• the release of this material would not be in the general public interest as disclosure of the material would be highly prejudicial to Austrade’s operations and third parties and could hamper Austrade’s ability to effectively administer grant programs in the future if grantees could not be assured that information provided will be in confidence.

The Applicant submitted that the charge should be waived in full because:

• Austrade did not consult with them to discuss the matters further before confirming the charge
• the Applicant understood that only three (3) discrete documents existed that were responsive to the request, so there was no need for the work proposed by Austrade
• Austrade should have been able to retrieve and compile the information much faster given the limited number of grantees that were the subject of the request
• Austrade did not appear to have consulted the former IT manager that was in control of the information being sought
• the amount claimed was excessive given that Austrade have advised the Applicant that certain parts of the request would result in nil docs
• the material being sought was in the public interest, and should have been proactively published by Austrade, given it related to a taxpayer funded program, being the EDMG program.

The Applicant also submitted that due to personal circumstances, medical fees and legal fees, the charge would place a significant financial burden them.

The Commissioner’s reasoning

The Commissioner did not need to make a finding on whether the payment of the charge would cause financial hardship because she was satisfied that giving access to the documents would be in the general public interest.

The Commissioner was not satisfied that Austrade’s claim that the documents contained commercially sensitive information concerning Austrade and third-party organisations was sufficient to establish that disclosure would be contrary to the public interest. The Commissioner was satisfied that the requested documents related to a matter of public debate, being the EMDG program, which is subject to independent reviews in accordance with its legislative scheme.

The Commissioner also found that there was a real possibility that the cost of calculating and collecting a charge might exceed the cost to Austrade of processing the request, which would be in favour of the waiver of the charge.

Ultimately, the Commissioner found that Austrade had not met its onus to establish why, in these circumstances, giving access to the material would not be in the general public interest for the purposes of determining whether the charge should be waived. The Commissioner set aside the decision under review and substituted their decision that the Applicant was not liable to pay a charge in respect of their request for access to the documents in issue.

Key takeaways

• Section 29(5)(b) does not replicate the public interest test in s 11A(5) of the FOI Act, meaning it does not involve a balancing of public interest considerations for and against disclosure of a document. Section 29(5) simply asks whether the giving of access to the information requested by an applicant is in the general public interest or in the interest of a substantial section of the public.
• Noting the above, when arguing that a charge should be imposed, the agency or Minister’s office must establish why, in the particular circumstances of the request, giving access to the material would not be in the general public interest.

If your agency requires advice or assistance with the processing of FOI requests, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.