By Michael Palfrey and Will Sharpe
The Federal Court decision in Collection Point Pty Ltd v Commissioner of Taxation provides guidance for Commonwealth agencies about meeting their obligations under the Freedom of Information Act 1982 (Cth) (FOI Act) when dealing with data contained on their computer systems. The request for access, in this case, was to written documents that didn't exist. To create those documents the agency would have to create a computer program to extract the material. The Court held that this meant that a computer was not "ordinarily available" to collate or retrieve the information and, therefore, the document did not need to be produced.
The case
Marshall J heard an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the ATO to refuse access to material sought by Collection Point under the FOI Act. Although the matter was determined under the pre-reform FOI Act, the terms of the relevant provision is similar in the current FOI Act.
Collection Point requested access to the names and addresses of each person on a register listing unclaimed superannuation maintained by the ATO. The ATO refused on the basis that no such document existed in discrete written form and the ATO couldn't produce this document using the computer ordinarily available to it. A new computer program would need to be written to comply with the request, at a cost of approximately $7,000 and one week's work.
"Ordinarily available" argument
There was no dispute that the ATO needed a new computer program to provide the material. The parties disagreed on the correct interpretation of the provision requiring an agency to produce a written document through the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information (s 17(1)(c)(i) of the FOI Act).
Collection Point submitted that the phrase "ordinarily available" means that the agency has access to the computer required to produce a document. On this interpretation, there would be no dispute and therefore it would be required to produce the material.
Before the Tribunal
The Tribunal rejected Collection Point's interpretation. It found that, in these circumstances, the computer that would have to be used to produce the document sought could not be said to be "ordinarily available", given the need to write a new program to extract the material. However, the Tribunal left open the question of whether the nonexistence of a program would always mean that the computer is not "ordinarily available", noting that this may turn on the time or cost of producing the requested document.
Before the Federal Court
Collection Point argued that the Tribunal had erred in its interpretation. It argued, as it had before the Tribunal, that "ordinarily available" was restricted to the availability of relevant computer hardware.
Similarly to the Tribunal, the Court found that requiring an agency to write a new computer program to produce a document means that the computer would not be "ordinarily available"; rather, that it would mean "an extraordinary step is required to be taken".
Implications for agencies
This case is significant for its clear statement on the meaning of "ordinarily available". The practical implication of the Court's interpretation is that there are limits on what agencies will be required to do to discharge their obligations under s 17 of the FOI Act.
Agencies must make each decision on its own merits and should be mindful to note the Tribunal's qualification that it is not necessarily the case that the absence of a relevant computer program will mean that a computer is not "ordinarily available".
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