Australian Information Commissioner John McMillan has proposed a new fee system for the FOI law, including a $50 application fee if a requester does not first try to access the documents through informal means.
McMillan says such a charge would apply if a requester doesn’t first attempt to utilize defined “administrative access schemes” at agencies. The process would include a 30-day time limit for the agency to respond.
“The only practical difference between the current and proposed arrangements is that a person could be delayed by up to 30 days to make an FOI request free of an application charge,” he writes.
McMillan says the change would benefit requesters and agencies. Efficiencies can be achieved through new government websites, “information publication schemes” and other efforts to make informationmroe available, he stresses. “This recommendation could bring about a major change in the operation of the FOI Act, marked by greater ease for the public in obtaining government information.”
He also advises nine other reforms, including simpler fees and various procedural changes. A FOI request would be free if it takes less than five hours to process, $50 if processed in under 10 hours, and $30 an hour after the first 10 hours. Implementation of his proposals will require legislative action.
Defining Administrative Access
McMillan’s proposal to encourage informal requests would apply when agencies, at their option, establish an administrative acess scheme.
“Administrative access can be as informal as a person calling or emailing an agency and receiving a response via telephone or email. Many requests to agencies for information or documents are handled by customer client contact centres or public affairs or liaison units. More structured arrangements can be specified in internal agency policies and involve, for example, recording requests, or charging for copying and postage of department publications or documents. Some agencies operate online portals that allow agency clients to log in and access or update information held about them.”
Such requests usually will be fulfilled without charge, he states.
He describes it further, saying:
The structure and procedures for administrative access are less important than the outcome. The key issue is whether a person is satisfied with the information provided, in whatever form it is provided. If so, the accountability and transparency objectives that underpin a person’s individual right to request access to government information have been met. If a person is not satisfied with an agency response under an administrative access scheme, they have enforceable legal rights under the FOI Act.
He later emphasizes benefits, including:
An administrative access scheme that operated as a lead-in to a formal FOI request could establish a productive discussion between applicants and agencies and help to clarify issues before the FOI statutory timeframes commence. The result could be that an FOI request that is made following an unsuccessful administrative access request is more clearly or narrowly framed and can be processed more quickly and inexpensively.
The FOI law, he argues, should reflect a greater emphasis now being given “to resolving disputes by consultation and negotiation rather than by formal legal processes.”
McMillan defines nine principles to guide the creation of the agency processes, largely to ensure clarity of the process.
He states that his proposal “should not be viewed as a retreat from the FOI reforms [of 2010] in which the $30 application fee for FOI requests was removed.”
“If not satisfied with the agency response the person could then make an FOI application without paying an application fee. The FOI request could be lodged 30 days after the administrative application was made, or earlier if the agency gave a quicker response,” according to McMillan.
“The only practical difference between the current and proposed arrangements is that a person could be delayed by up to 30 days to make an FOI request free of an application charge. The expectation, however, is that many applications would not need to proceed to that second stage and would be dealt with adequately at the administrative stage.”
Four Overall Principles of Reform
McMillan notes in the 102-page report that “full cost-recovery would be incompatible with the objects of the FOI Act and would strike unfairly against large sections of the community. “The reported fees and charges collected by agencies represent only 2.08% of the estimated total cost of administering the FOI Act (1.68% in 2010–11). “The FOI reform objective in 2010 was to further reduce the cost to the community of obtaining government information and to promote greater transparency in government,” he states.
“A balance must be struck, but the current method in the FOI Act and Charges Regulations of striking that balance is inadequate. The charging framework is not easy to administer; charges decisions cause more disagreement between agencies and applicants than seems warranted; in some cases the cost of assessing or collecting a charge is higher than the charge itself; and the scale of charges is outdated and unrealistic.
The report proposes four principles to underpin a new charges framework:
– Support of a democratic right: Freedom of information supports transparent, accountable and responsive government. A substantial part of the cost should be borne by government.
– Lowest reasonable cost: No one should be deterred from requesting government information because of costs, particularly personal information that should be provided free of charge. The scale of charges should be directed more at moderating unmanageable requests.
– Uncomplicated administration: The charges framework should be clear and easy for agencies to administer and applicants to understand. The options open to an applicant to reduce the charges payable should be readily apparent.
– Free informal access as a primary avenue: The legal right of access to documents is important, but should supplement other measures adopted by agencies to publish information and make it available upon request.
Ten Recommendations Made
His recommendations are summarized as follows:
1. Administrative access: agencies are encouraged to establish administrative access schemes that enable people to request access to information or documents that are open to release under the FOI Act. A scheme should be set out on an agency’s website and explain that information will be provided free of charge (except for reasonable reproduction and postage costs).
2. FOI application fees: to encourage people to use an administrative access scheme prior to using the FOI Act, an agency may in its discretion impose a $50 application fee if a person makes an FOI request without first applying under an administrative access scheme that has been notified on an agency’s website. A person who applies under an administrative access scheme and is not satisfied with the outcome or who is not notified of the outcome within 30 days may make an FOI request without paying an application fee. The agency’s exercise of the discretion to impose a $50 application fee would not be externally reviewable by the Information Commissioner (IC reviewable), nor subject to waiver on financial hardship or public benefit grounds.
3. FOI processing charges: no FOI processing charge should be payable for the first five hours of processing time (which includes search, retrieval, decision making, redaction and electronic processing). The charge for processing time that exceeds five hours but is less than 10 hours should be a flat rate of $50. The charge for each hour of processing after the first 10 hours should be $30 per hour.
4. Ceiling on processing time: an agency should not be required to process a request that is estimated to take more than 40 hours. The agency must consult with the applicant before making that decision. This ceiling will replace the practical refusal mechanism in ss 24, 24AA and 24AB. An agency decision to impose a 40 hour ceiling would not be IC reviewable, though the agency’s 40 hour estimate would be reviewable.
5. FOI access charges: specific access charges should apply for other activities, such as supervising document inspection ($30 per hour), providing information on electronic storage media (actual cost), postage (actual cost), printing ($0.20 per page) and transcription (actual cost).
6. Personal information: there should be no processing charge for providing access to documents that contain an applicant’s personal information, but personal information requests should be subject to the 40 hour ceiling applying to other requests.
7. Waiver: the specified grounds on which an applicant can apply for reduction or waiver of an FOI processing or access charge should be financial hardship to the applicant, or that release of the documents would be of special benefit to the public. An agency may waive a charge in full or by 50% or decide not to waive. An agency would also have a discretion not to impose or collect an FOI application fee or processing or access charge; the exercise of that general discretion would not be an IC reviewable decision.
8. Reduction for delayed processing: where an agency fails to notify a decision on a request within the prescribed statutory period, the FOI charge that is otherwise payable should be reduced by 25% if the delay is seven days or less, 50% if more than seven but up to and including 30 days, or 100% for a delay of more than 30 days.
9. Review application fees: there should be no application fee for internal review. Nor should there be an application fee for IC review, if an applicant first applies for internal review and is not satisfied with the decision or is not notified of a decision within 30 days. If an applicant applies directly for IC review when internal review was available, a fee of $100 should be payable. The fee should not be subject to waiver.
10. Indexation: all FOI fees and charges should be adjusted every two years to match any Consumer Price Index change over that period, by rounding the fee or charge to the nearest multiple of $5.
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