internal review charges BS 30 march 23.pdf

LEGAL, INTERNATIONAL AND REGULATORY AFFAIRS

RMS Ref: F23/6839

30 March 2023

BS

By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear BS,

INTERNAL  REVIEW  - REQUEST  FOR ACCESS  UNDER  THE  FREEDOM OF  INFORMATION
ACT 1982

Background

On 18 February 2023, you sought access to documents under the Freedom of Information Act 1982
(the Act), as follows:

I kindly request the following information relating to Airservices Australia activities that are
regulated by CASA:
-Details of all surveillance activity for Sydney Tower and Sydney TCU between the dates 1st
January 2022 and 17th February 2023, including any results (including safety observations, alerts,
and findings).
-Details of all enforcement activity related to the abovementioned surveillance.
-A summary of any actions required by Airservices including whether they have been addressed or
are outstanding.

The date range of your access request was 1 January 2022 to 17 February 2023.

On 15 March 2023, an officer of CASA made a decision to impose charges in the amount of
$707.29 in relation to your application.

On 15 March 2023, you emailed contending that the charge should be waived, as you suggested
there was genuine public interest in these documents. You also sought clarification as to why
such a high charge was applied. You requested advise if a specific aspect of your request was
attributing to such a high charge and that if that was the case you may consider limiting the
request.

On 15 March 2023, CASA responded that as you were seeking documents that outline the status
of any current findings as previously explained this is not housed in any one document, therefore
included in scope was all the emails between Air services and CASA outlining the actions taken
regarding each finding. This volume of documents was what attributed to such a high charge.
CASA informed outside of these documents the surveillance report covered most of the scope of
your request (safety observations, alerts, and findings).

On 16 March 2023, you emailed responding ‘I would like to limit my FOI request to the single
document you have referred to. I trust this would remove all charges.’

On 16 March 2023, CASA responded to your email, advising that although this does not remove
all charges, they had been drastically reduced as a result of revising the scope of your request. At
this time, CASA also provided a revised preliminary charges notice to you which outlined the new
amount of $23.45.
GPO Box 2005 Canberra ACT 2601

On 16 March 2023, you responded ‘I contend that these charges should be waved. There is
clearly a genuine public interest in the release of these files. The document you refer to outlines
safety issues in the Australian aviation industry and refers directly to safety findings of the
regulator at Australia's busiest airport. The information contained in the document could have
wide-ranging safety impacts on every single flight, and every single passenger in and out of
Sydney Airport.’

Section 29 (Charges) Decision

By a decision dated 23 March 2023, you were advised:

I have considered your submission for a fee waiver and the grounds for my decision are outlined
below in accordance with section 25D of the Acts Interpretation Act 1901 (Cth).

Section 29(5) of the Act explains:

Without limiting the matters the agency or Minister may take into account in determining
whether or not to reduce or not impose the charge, the agency or Minister must take into
account:
(a)
whether the payment of the charge, or part of it, would cause financial hardship to the
applicant, or to a person on whose behalf the application was made; and
(b)
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.

You have made a claim under subsection 29(5)(b) that access to the documents sought is in the
public interest. Firstly, to make a decision that the charges are not imposed, I must be satisfied of
both subsections 29(5)(a) and (5)(b).1 In summary, it must be demonstrated (a) how the charge
imposed would cause you financial hardship, and (b) that the documents within the scope of your
access request contain matters in the public interest.

In relation to (a), for the purpose of subsection 29(5)(a), you have made no claim of financial
hardship and therefore I have no information available to me to be satisfied payment of the charges
would cause hardship.

In relation to (b), regarding subsection 29(5)(b), paragraph 4.107 of the Office of the Australian
Information Commissioner (OAIC) Freedom of Information Guidelines explains—

An applicant relying on s 29(5)(b) should identify or specify the ‘general public interest’ or the
‘substantial section of the public’ that will benefit from this disclosure (s 29(1)(f)(ii)). This may
require consideration of both the content of the documents requested and the context in
which their public release would occur. Matters to be considered include whether the
information in the documents is already publicly available, the nature and currency of the
topic of public interest to which the documents relate, and the way in which a public benefit
may flow from the release of the documents’.

Considering paragraph 4.107, the three following pre-requisites must be satisfied for the grant of a
fee waiver for subsection 29(5)(b):

1.  the documents disclosed are not presently available to the public;
2.  the subject should be a matter of public interest or relate to decisions by government;
and
3.  the release will facilitate access by the public generally, by a substantial section of the
public, or by government and facilitate public debate or government decision-making.2

I am satisfied of Item 1, that the information contained in the documents is not currently available
through the public record. Regarding Item 2, although I maintain the subject is likely to be a matter
of general public interest, it is undetermined whether this would be a substantial section of the

1 Tennant and Australian Broadcasting Corporation (2014) AATA 452, 13
2 Ibid 21
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public interest. To satisfy Item 3, I must be satisfied that disclosure to you would meet the statutory
standard under the Act to ‘benefit the general public or a substantial section of the public’,3 while
fostering public debate and contributing to the government exercising its decision-making powers.4
It is important to note that the public interest test is connected to members of a democratic society
being sufficiently informed to enable them to contribute with influence to administrative decisions
that may affect their affairs.5 Disclosure to an individual in the absence of any context regarding the
public release of the information is inconsistent with this purpose.

While you have contended that the documents sought are relevant to the public interest and you
have explained your opinion as to why this would be the case, you have not provided context in
which the document would be made public, and the way in which a public benefit may flow from the
release of the document. On this basis, I do not consider I have adequate information to form a
view that giving access to the documents would be in the general public interest or in the interest of
a substantial section of the public.

Moreover, I note that the document sought contains business sensitive information of a third party.
While I may consider it to be in the public interest to know of CASA’s surveillance of third-party
entities holding a delegated authority under the Civil Aviation Act 1988 (Cth), I am not satisfied that
there is a general public interest to have access to documents that disclose the business sensitive
information of that third-party. Additionally, such a third party does not have a public duty to make
their private affairs a public record.

Clarification of information regarding CASA’s surveil ance processes may be sought through
CASA’s Government and Parliamentary Services Section at xxx@xxxx.xxx.xx.

Additionally, the fees imposed have been estimated at the lowest reasonable cost considering the
business sensitivity of the document sought and that the document may be subject to exemptions
under the Act. In addition, you have not made any contentions that the payment of the charge, or
part of it, would cause financial hardship.

Consequently, I have made a decision to impose charges as you have not satisfied the
requirements of sections 29(5)(a) and (b) of the Act. I have imposed charges in the amount of
$23.45 in relation to your application.

What you must do now

Payment of $23.45 (GST free) can be made by credit card by completing the attached form and
sending back for processing.

Under section 31 of the Act, the time limit for processing your request will resume on the day you
pay the charge.

Application for internal review of decision

By email of 23 March 2023, you sought internal review of CASA officer Phengrasmy’s decision.

Section 29 of the Act states in part:
      (4)   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.
     (5)  Without limiting the matters the agency or Minister may take into account in determining whether
or not to reduce or not to impose the charge, the agency or Minister must take into account:
          (a)   whether  the  payment  of  the  charge,  or  part  of  it,  would  cause  financial  hardship  to  the
applicant, or to a person on whose behalf the application was made; and

3 Ibid 32
4 Ibid 34
5 Attorney-General v Times Newspapers (1974) AC 273, 320
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         (b)  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.

You have not contended that payment of the charge of $23.45 would cause financial hardship to
you  and  therefore  I  find  that  payment  would  not  cause  financial  hardship,  especially  noting  the
small amount of the charge.

I have also considered 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. You seek access to a recent
CASA  surveillance  report  of  Airservices  Australia  in  relation  to  its  provision  of  air  traffic  control
services at Sydney Airport. The report makes various compliance findings about such services. A
substantial section of the public travel in aircraft to and from Sydney Airport and accordingly, I find
that the giving of access to the document in question is in the interest of a substantial section of
the public.

Internal review decision

I have decided to waive the payment of the charge. Whilst I have found that payment would not
cause financial hardship, I find that the giving of access to the surveillance report is in the interest
of a substantial section of the public. I have also taken into account the small amount of the charge.
CASA will now continue to process your request for access.

Please  note  that  because  I  have  made  such  a  decision  in  this  matter  where  you  have  not
demonstrated financial hardship, it will not necessarily follow I would make the same decision on
future requests for access to documents. I would consider all the evidence in each particular case.

Please do not hesitate to contact me if you have any questions in relation to your request.

Yours sincerely,

Adam Anastasi
Manager
Advisory and Drafting Branch
Legal, International and Regulatory Affairs Division

Email: xxxx.xxxxxxxx@xxxx.xxx.xx

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