FEDERAL COURT OF AUSTRALIA

Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth)

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    By a notice of appeal dated 30 July 2012, Collection Point Pty Ltd (“the appellant”) appeals from a decision of the primary judge who, on 10 July 2012, affirmed the decision of the Administrative Appeals Tribunal (“AAT”) which held that on a proper construction of the relevant provisions of the Freedom of Information Act 1982 (Cth) as in force prior to its amendment effective on 1 November 2010 (“the Act”), the Commissioner of Taxation of the Commonwealth of Australia (“the respondent”), was not obliged to provide access to a document requested by the appellant.

2    By amended notice of appeal dated 31 January 2012, the appellant appealed from the AAT to the Federal Court on the following question of law:

On a proper construction of s 17(1)(c)(i) of the Act is the need to write a new computer program a fact capable of meaning that a computer is not ‘ordinarily available’ to an agency?

The appellant contended that the question of law should be answered “No”.

3    The appellant’s sole ground of appeal from the Federal Court to the Full Federal Court is as follows:

The primary judge erred in construing s 17(1)(c)(i) of the Freedom of Information Act 1982 (Cth) as requiring that an agency is able to produce a written document containing the requested information in discrete form by using a computer “in a manner” that is ordinarily available to the agency to retrieve or collate stored information.

4    The construction of s 17(1)(c)(i) of the Act central to this appeal, although a narrow point, is, as the primary judge stated, “important” and of continuing relevance, as the provision was unaffected by subsequent amendments to the Act.

Relevant legislation AND extrinsic material

5    Section 24A of the Act provided:

24A    Requests may be refused if documents cannot be found or do not exist

An agency or Minister may refuse a request for access to a document if:

(a)    all reasonable steps have been taken to find the document; and

(b)    the agency or Minister is satisfied that the document:

(i)    is in the agency’s or Minister’s possession but cannot be found; or

(ii)    does not exist.

6    Section 17 of the Act provided:

17    Requests involving use of computers etc.

(1)    Where:

(a)    a request (including a request of the kind described in subsection 24(1)) is made in accordance with the requirements of subsection 15(2) to an agency;

(b)    it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and

(ba)    it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and

(c)    the agency could produce a written document containing the information in discrete form by:

(i)    the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(ii)    the making of a transcript from a sound recording held in the agency;

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.

(2)    An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

7    Section 3 of the Act provided:

3    Object

(1)    The object of the Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a)    making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b)    creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, 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 departments and public authorities; and

(c)    creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2)    It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

8    The Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978 (“Senate Committee Report”) paragraph 8.33 states:

8.33    We believe that, by and large, it would be an unreasonable interference with the operations of an agency to require it to write a wholly new program for the retrieval of information stored in a wholly different, or differently aggregated, form, in computer data files. It would not, on the other hand, be at all unreasonable for it to be required to supply to an applicant particular data which can readily be printed out without the necessity for a new program to be written at all. Between these extremes there are a number of intermediate situations which can be envisaged, where modifications to an existing program are required to a greater or lesser extent. How each agency might handle such requests is essentially a decision for it to make: we make recommendations in Chapter 11 below which would enable it to recover an appropriate fee for the amount of computer and computer finance time involved, and no doubt this would be a relevant consideration for the agency to weigh. The only specific recommendation we make with respect to clause 15 is the modification of the language of sub-clause (2) to bring it into line with our proposed amendment to clause 13(3), discussed in Chapter 13 below. Although it may not make an important difference to the legal meaning of the sub-clause to express the requisite degree of interference as ‘substantial and unreasonable’ rather than merely ‘unreasonable’, we believe this kind of terminology will convey more precisely the spirit of what is intended, and help to ensure that this escape route is not relied upon by an agency more than is absolutely necessary.

Background

9    The relevant facts are set out in detail in the reasons of the AAT and the primary judge. Briefly stated, on 22 December 2009, the appellant (whose business included assisting clients to retrieve unclaimed moneys from various entities) requested a copy of “the unclaimed superannuation money register” from the respondent.

10    On 16 February 2010, the respondent rejected the appellant’s request pursuant to s 24A of the Act on the ground that although it maintained two relevant registers, it was incapable of generating a whole register report as requested. Thus, no document answering the appellant’s request existed. On 17 March 2010, the appellant requested the respondent to provide the names and addresses of, and the amount of unclaimed moneys owed to, persons listed on the two relevant registers.

11    On 5 May 2010, the respondent rejected the appellant’s second request for information pursuant to s 24A of the Act, again on the ground that it did not have a register capable of generating a whole report and could only access the relevant registers on an individual basis.

12    The appellant then sought an internal review of the decision pursuant to s 54 of the Act. The respondent affirmed the decision to refuse access.

The application to the AAT

13    The appellant applied to the AAT for a review of the respondent’s decision.

14    Although the information sought by the appellant was contained in a computer database maintained by the respondent, it could not simply be downloaded and was not in a discrete written document. Before the AAT, the appellant contended that the respondent was nevertheless obliged to provide the information pursuant to s 17(1) of the Act, as it could produce a written document containing the information by the use of a computer ordinarily available to it for retrieving or collating stored information within the meaning of s 17(1)(c)(i). It was common ground that a new computer program would be necessary to transfer the information from the respondent’s database into a discrete format that could be downloaded onto a CD or DVD. The task would involve seven days’ work by a computer programmer, who would have to write and test a new computer program, produce a report and convert it to an excel spreadsheet for loading onto a CD or DVD. The work would cost approximately $7,000.

15    Before the AAT, the respondent estimated that the task would also require junior administrative officers to review the material, which would take approximately three months and cost about $60,000. The appellant disputed that estimate, but argued that if the relevant computer hardware was readily available, the need for a new computer program did not exclude the application of s 17(1). The respondent contended that the need to acquire a new computer program excluded the obligation to provide access to information under s 17 of the Act.

16    The respondent relied, in that context, on several State tribunal decisions on legislation containing provisions similar but not identical to s 17(1)(c) of the Act (Re Halliday and Corporate Affairs (1991) 4 VAR 327; Dimitrijev v Department of Education [1998] QICmr 14 and Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23). Broadly, the State tribunal decisions held that a computer would not be “ordinarily available” or “usually available” under the applicable legislation if a new computer program were required and that the relevant agency would not be obliged to provide the requested information.

17    The AAT (constituted by Member Hughes) affirmed the respondent’s decision to refuse access to the information. The AAT concluded that “a computer and other equipment was [sic] not ordinarily available for use in connection with the retrieval or collection of the information that the [appellant] sought.” The AAT found that “the information did not exist in discrete form” and that “it would be necessary to write a computer program … [which] would take at least a week, regardless of the methodology adopted, and the cost would be a significant sum in the vicinity of $7000.” The AAT considered that the need to write a new computer program went to whether the obligation under s 17(1) arose, rather than whether the agency should be exempt from compliance with it under s 17(2). The AAT observed that the analogous legislation considered in the State tribunal decisions did not contain an equivalent of s 17(2) and that s 17(2) did not directly affect the question whether facilities were ordinarily available. Rather, it was relevant to whether the effort involved in extracting the information from ordinarily available facilities was excessive. The AAT concluded that where the information sought did not exist in discrete form and would require a new computer program, the effort and cost required to produce it could not be interpreted as the utilisation of facilities ordinarily available to the agency. Having concluded that s 17(1) of the Act did not apply, the AAT stated that it was unnecessary to consider the application of s 17(2).

The decision of the primary judge

18    The appellant appealed to the Federal Court on the question of law, contending that the AAT had erred in its construction of s 17(1)(c)(i).

19    The primary judge (Marshall J) dismissed the appeal. Having set out the uncontroversial factual background (at [2]-[5], [9]-[11]) of the reasons, his Honour rejected the appellant’s contention that s 17(1)(c)(i) focused entirely on the availability of the computer and left any difficulties arising in the use of the computer to comply with the request exclusively to s 17(2). His Honour noted that s 17(2) need not be considered unless s 17(1) was satisfied (at [19]). His Honour stated (at [20]):

The ordinary meaning of s 17(1)(c)(i), looking at the plain words of the provision, is that an agency is able to produce a written document containing the requested information in discrete form by using a computer in a manner that is ordinarily available to it to retrieve or collate stored information. If a new computer program is required to be written to produce the document then a computer is not being used in a manner that is ordinarily available to the agency because an extraordinary step is required to be taken.

20    His Honour said that the above construction was consistent with the approach taken by various State tribunals to “materially identical” or “comparable” legislation. His Honour considered that the appellant’s construction advanced gave “no work for the words ‘ordinarily available’ to do in s 17(1)(c)(i)”. Further, he described the Senate Committee Report as “at best, equivocal” and considered it of “very limited assistance to the court”.

21    His Honour further stated at [22]:

The tribunal gave a correct interpretation to the operation of s 17 of the FOI Act. The documents requested by Collection Point were not capable of being produced by the ATO by the use of a computer, being a use that is ordinarily available to the ATO for retrieving and collating stored information. Instead, to answer the request, the ATO would have been required to use a computer in an extraordinary manner, as compared to the ordinary processes available for the retrieval and collation of such material. Put simply, the ATO would be required to use a computer in a manner other than that which is ordinarily available to it. The contrary construction which focuses on the mere use of a computer gives no work for the words “ordinarily available” to do in s 17(1)(c)(i). So much is especially so in the context of the modern digital economy where the focus on computer systems is more critical than a mere examination of physical hardware.

tHE PARTIES’ SUBMISSIONS

The appellant’s submissions

22    Before us, the appellant submitted that the primary judge departed from the “natural and ordinary meaning” of s 17(1)(c)(i) and erroneously imposed a requirement that the computer be used in a manner that was ordinary for the agency. The appellant submitted that, to the contrary, s 17(1)(c)(i) required only that the computer hardware itself be ordinarily available to the agency. Accordingly, the need to write and use a new computer program could not mean that a computer was not “ordinarily available” to an agency. Any inconvenience, diversion of resources or cost involved in writing and using a new computer program was properly to be addressed under s 17(2).

23    The appellant submitted that its construction was supported by a consideration of s 17 as a whole and gave full effect to the object in s 3 of the Act of providing the Australian community with access to information held by the Commonwealth Government. In the appellant’s submission, the respondent’s construction would frustrate the statutory object. An agency could adopt storage methods to obviate the obligation which would be excluded by any need for new computer programming, no matter how slight an inconvenience.

24    The appellant submitted that the Senate Committee Report supported its construction by recognising that new programming might (subject to s 17(2) of the Act) be required in some circumstances. Further, the decisions of State tribunals were distinguishable as they concerned legislation which did not contain an equivalent to s 17(2).

The respondent’s submissions

25    The respondent submitted that the primary judge correctly rejected the appellant's construction. The respondent contended that consistently with the primary judge’s reasons, s 17(1)(c)(i) was properly concerned with the manner in which the computer system was ordinarily used or with the function it ordinarily performed, at least in the sense that modifications therefrom would not be a use of the computer system ordinarily available to the agency. Section 17 would not apply if the production of a document containing the requested information required such a departure from the ordinary operation of the computer system that it no longer involved the use of the system “ordinarily available to the agency”, which was a question of fact and degree to be resolved in each case.

26    The respondent submitted that its construction was consistent with the effective operation of s 17, which was an exception to the general rule that an agency was not obliged under the Act (which gave a general right of access to “information in documentary form” (see s 3(1)(b)) to create a document for the purposes of satisfying a request for access to documents.

27    The respondent acknowledged that the need to change temporary settings, install additional software or create a search query in order to interrogate a database would probably not exclude the agency’s obligation under s 17(1). On the other hand, the need to reprogram a computer system or create new software to produce a document was unlikely to involve the use of the computer system that was “ordinarily available” to the agency. It would probably entail “the development of a new computer system for the sole purpose of complying with the Appellant’s request”, an “inconvenient” outcome that s 17 was intended to avoid.

28    The respondent submitted that the Senate Committee Report was neutral on the competing constructions relevant to this appeal and merely balanced the goals of providing access to information in non-documentary form and ensuring that agencies were not required to reprogram their computer systems in order to satisfy a request for access.

29    The respondent submitted that the State tribunal decisions on which the primary judge relied remained relevant, as they construed legislation cast similar terms to s 17(1)(c)(i), which in one case at least contained a general exemption equivalent to s 17(2).

30    Before us, the respondent ultimately conceded that the concept of “ordinarily available” admitted a degree of flexibility and did not absolutely exclude from the ambit of s 17(1)(c)(i) cases where it was necessary to write a new computer program. The respondent reiterated, however, that a computer would rarely be “ordinarily available” in the relevant sense if a new computer program were required.

Consideration

31    In our opinion, the primary judge correctly rejected the appellant’s construction of s 17(1)(c)(i) of the Act and its relationship to s 17(2), which underpinned the appellant’s contention that the need to write a new computer program was not a fact capable of meaning that a computer was not “ordinarily available” to the agency.

32    Fundamental to the appellant’s argument were two distinct but related assertions, neither of which was, on analysis, persuasive.

33    First, the appellant contended that the computer ordinarily available to an agency for collating and retrieving stored information (“the specified purpose”) in s 17(1)(c)(i) of the Act was merely computer hardware. Therefore, an agency’s obligation under s 17(1) to comply with a request for access to information could never be excluded merely because it needed to obtain a new computer program in order to do so.

34    Secondly, the appellant contended that s 17(2) supported the above construction, as it satisfactorily obviated any undue burden entailed by the existence of an obligation under s 17(1) where its fulfilment required components not “ordinarily available” (including, for example, a new computer program).

35    The principles applicable to statutory construction were uncontroversial. They were recently stated by the plurality (Hayne, Heydon, Crennan and Kiefel JJ) in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; (2009) 260 ALR 1 at [47] as follows:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. [citations omitted]

36    In our opinion, the appellant’s construction conflates the distinct functions of ss 17(1) and 17(2).

37    Section 17(1) of the Act specifies particular conditions in which an agency’s obligation to provide access to requested information will arise although it would not otherwise be imposed under the Act. Section 17(2) specifies the circumstances in which the agency will be exempt from compliance with the obligation under s 17(1).

38    The language and structure of s 17 and its operation within the Act as a whole make clear that the preconditions of the existence of the agency’s obligation are independent of, and distinct from, the circumstances exempting the agency from compliance.

39    There is considerable potential overlap between factual matters relevant to the questions under s 17(1)(c)(i) (whether the use of a computer or other equipment is ordinarily available) and s 17(2) of the Act (whether compliance with the obligation to produce the requested document would be a substantial and unreasonable diversion of the agency’s resources). The two inquiries nevertheless arise sequentially. The satisfaction of the conditions under s 17(1) is a pre-condition for the application of s 17(2). Nor, despite the overlap, are the questions interchangeable. The satisfaction of the conditions of s 17(1)(c)(i) does not ensure satisfaction of the conditions of s 17(2), and vice versa.

40    A computer or other equipment would not be ordinarily available to an agency for the specified purpose simply because it could be obtained or accessed without an unreasonable diversion of resources. Conversely, although a requested document could be produced by the use of the ordinarily available computer or other equipment, the production might nevertheless involve a substantial and unreasonable diversion of the agency’s resources, which would exempt it from compliance.

41    Further, if the “computer” in s 17(1)(c)(i) be read as computer hardware only, the requirement that it be “ordinarily available” would not operate effectively to limit the existence of the obligation.

42    Rather, the requirement that the computer or other equipment capable of producing the document be ordinarily available would be largely subsumed in an inquiry whether the agency could access a computer or other equipment capable of producing the document without a substantial or unreasonable diversion of its resources.

43    In our opinion, the computer referred to in s 17(1)(c)(i) is not merely computer hardware. Rather, it means a functioning computer system including software, that can produce the requested document without the aid of additional components which are not themselves ordinarily available.

44    Section 17(1)(c)(i) is directed at ensuring that an agency will not be obliged to produce a document unless the effective and comprehensive means of doing so are ordinarily available to it for the specified purpose. In that context, the computer or other equipment ordinarily available for the specified purpose must be capable of functioning independently to collate or retrieve stored information and to produce the requested document.

45    Were it otherwise, the obligation under s 17(1) would arise whenever the agency had ordinarily available for the specified purpose computer hardware or other equipment capable of some use in the process of producing the requested document, even if the achievement of that outcome depended principally on other components that were not ordinarily available to the agency for the specified purpose or indeed, were not obtainable at all.

46    On that construction, s 17(1)(c)(i) would have no substantial or sensible operation. While the appellant submitted that it would exclude the obligation if the production of the document would require computer hardware that the agency did not ordinarily possess or access (even if it were available for purchase or acquisition in the market place), such a limitation would have a minimal and potentially anomalous application.

47    The agency would not be obliged to produce the document under s 17(1) if the necessary computer hardware was not ordinarily available even if it could be acquired without a substantial or unreasonable diversion of its resources. It would nevertheless be obliged (subject only to the possibility of exemption under s 17(2)) to do so if the computer hardware were ordinarily available even if it also required components of every other kind, irrespective of how extraordinary they were to the agency’s usual operations.

48    It may be unnecessary for the purposes of this appeal definitively to determine the scope of “ordinarily available” in s 17(1)(c)(i). In our view, however, while an “ordinarily available” computer or “other equipment” is not limited to that currently in the agency’s possession, it does not include that which is or may become available to the agency for the specified purpose only outside the ordinary course of its operations. Whether an item is ordinarily available will depend upon the facts of the particular case, which may include whether access to it would involve a departure from the agency’s ordinary or usual conduct and operations.

49    In our view, a computer might in some cases be ordinarily available within the meaning of s 17(1)(c)(i) even if a new computer program were required in order for the computer to produce the requested document. The agency might, for example, routinely commission or retain staff to produce new computer programs of the necessary kind.

50    The Senate Committee Report appears to recognise that the need for a new computer program would usually, rather than absolutely, preclude the obligation. However, as the primary judge observed, due to its generalised tenor, the Senate Committee Report does not greatly assist in the construction of s 17(1)(c)(i).

51    While it may seem anomalous that s 17(1)(c)(i) could exclude an obligation from which (had it existed) the agency would not have secured exemption under s 17(2), the appellant’s construction produces more fundamental and extensive anomalies, as it deprives s 17(1)(c)(i) of effective operation and attributes an unduly broad function to s 17(2).

52    It follows that in our opinion, the need for a new computer program to enable the computer ordinarily available to the agency for retrieving or collating stored material to produce the requested document is a fact capable of meaning that the agency cannot, by the use of a computer ordinarily available, produce the requested document.

53    As the appellant submitted, s (17)(1)(c) is not directed at the ordinary manner of use of a computer. Rather, it asks, among other things, whether a computer or other equipment (whatever the usual way of using it) is ordinarily available to the agency for retrieving or collating stored information. While the primary judge’s reference to “using a computer in a manner that is ordinarily available to it” does not strictly reflect the language of the provision, his Honour recognised, correctly in our view, that the appellant’s construction deprived s 17(1)(c)(i) of effective operation, that the computer “ordinarily available” to the respondent was its functional computer system comprising hardware and software; and that in that particular case, as new software was necessary to produce the requested document, the respondent could not do so by the use of its computer ordinarily available for the specified purpose, so the obligation under s 17(1) did not arise.

Conclusion

54    In our opinion, the primary judge did not err in his construction of s 17(1)(c)(i) of the Act.

55    In our opinion, the appeal should be dismissed with costs.

Associate:

Dated:    3 July 2013