More Fees, Discretion to Refuse FOI Requests Recommended In Australia

7 May 2012

By Avinesh Chand and Barry Dunphy

This article appeared April 26 on the blog of the Australian Clayton Utz law firm and is reprinted with permission.

Key Points: Agencies could have greater discretion to refuse freedom of information requests, and charge more fees – but applicants would get a cheaper alternative to FOI

If recent recommendations made by the Australian Information Commissioner for amendments to the Freedom of Information Act 1982 (Cth) (FOI Act) are accepted and implemented by the Australian Government, an agency or Minister would have the discretion to refuse to process a FOI request for personal or non-personal information that is estimated to take more than 40 hours to process.

The recommendation is one of a number made by the Australian Information Commissioner in a recent report which reviews and recommends an overhaul of the processing and charges regime set out in the FOI Act.

The report also recommends a new charges framework in the FOI Act and the Freedom of Information (Charges) Regulations 1982 which would enable the FOI Act to work better in providing public access to government information without impairing agencies’ and Ministers’ other responsibilities.

In his report, the AIC stated that the current charging framework is not easy to administer; charges decisions cause more disagreements between agencies and applicants then seems warranted; in some cases the cost of assessing or collecting a charge is higher then the charge itself; and the scale of charges is outdated and unrealistic.

Some of the features that the AIC has recommended for the new charges framework are discussed below.

Requests can be refused if processing time will exceed 40 hours

Perhaps the most significant of the AIC’s recommendations is that agencies should have the discretion to refuse requests which they estimate will take more than 40 hours to process.

Before making the decision, agencies must advise the applicant of the estimated processing time and take reasonable steps to assist the applicant to revise the request so that it can be processed within 40 hours. As is currently the case, two or more requests for the same documents or documents relating to substantially the same subject matter may be treated as a single request.

An agency’s decision not to process a request above the 40 hour ceiling would not be reviewable, but its estimation of the processing time could be reviewed by the AIC.

The 40 hour ceiling would replace the practical refusal mechanism in sections 24-24AA of the FOI Act which requires an agency to consider whether the processing of a request would substantially or unreasonably divert the resources of the agency from its other operations.

Request for administrative access prior to access under the FOI Act

Agencies should be encouraged to establish administrative access schemes (AA schemes) which allow the public to access information outside of the formal FOI request process, efficiently and at a low cost.

AA schemes should be published on agencies’ websites and specify the information which will be provided free of charge, with the exception of the costs associated with reproduction and postage.

Depending on the size of an agency, its work, the requests it typically receives for information or documents, and its regular procedures for public contact and access, the AA scheme could cover particular types of documents – for example, the AA scheme may apply to only some of the agency’s records (such as personal records or client case files) which could be obtained without the need to engage with the formal FOI process.

It is hoped that an AA scheme, together with the existing Information Publication Scheme which requires agencies to publish certain categories of documents, will mean that members of the community will be able to obtain access to more documents held by agencies without having to resort to the exercise of their legal rights under the FOI Act.

FOI application fee to be imposed if AA scheme not used first

The FOI Act at present does not allow for application fees to be imposed for the making of FOI requests.

To encourage the public to use an AA scheme first, agencies should be able to impose a $50 application fee for FOI requests made without first applying under an AA scheme. The decision to impose the fee would not be externally reviewable or subject to waiver.

An FOI request may be made free of charge where a person is either not satisfied with the outcome of an AA scheme, or not been notified of it within 30 days.

Modest increase in FOI processing charges

Currently the first five hours of decision-making time is free but agencies may charge $15 an hour for searching and retrieving documents. They may also charge $20 per hour for decision-making time after the first five hours.

The AIC recommends that the first five hours of FOI processing time should be free, and a flat rate of $50 imposed for processing time between that and 10 hours. After that, each hour of processing should be charged at $30 per hour.

Access to personal information to remain free so long as request can be processed within 40 hours

As is currently the case, there should be no processing charge for providing access to documents that contain an applicant’s personal information. However, personal information requests should be subject to the 40 hour ceiling.

Reduction in charges for delayed processing

The FOI charge associated with a request should be reduced when an agency fails to notify a decision within the prescribed statutory period:

  • if the delay is seven days or less, reduction by 25%;
  • if the delay is more than seven days but up to and including 30 days, reduction by 50%; or
  • if the delay is more than 30 days, reduction by 100%.

Currently a charge cannot be imposed if an applicant has not been notified of a decision in relation to a request within the prescribed statutory period or that period as extended under a provision of the FOI Act.

AIC review application fee to be imposed if internal review not sought

As is currently the case, there should be no application fee for internal review or review of an internal review decision by the AIC. However, if an applicant applies for review by the AIC without first applying for internal review, an application fee of $100 should be payable – which could not be reduced or waived.

This is to encourage applicants to resolve disputes with agencies and to limit the number of requests sent to the AIC.

Where internal review in not available (for example, following a decision of a Minister or the principal officer of an agency) review by the AIC should continue to be free.

What happens next?

The Australian Government will consider the AIC’s report and recommendations and decide if and how they should be implemented.

To date, no announcement has been made as to when a decision will be made on the recommendations in the report.

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