Review of charges under the Freedom of Information Act 1982 Report to the Attorney-General

Indexation

Recommendation 8 – Indexation

8.1 All FOI fees and charges should be adjusted every two years to match any change over that period in the Consumer Price Index, by rounding the fee or charge to the nearest multiple of $5.00.

The FOI Act and Charges Regulations do not include an indexation mechanism for adjusting charges from time to time to match changes in the CPI. As a consequence, FOI charges have not increased since 1986, even though the CPI has risen over that period.

The proposal is that FOI fees and charges be reviewed every two years to be adjusted in line with CPI changes (most likely an increase). To retain simplicity in the charges framework a change will occur only if rounding the charge to the nearest multiple of $5 would result in a change.

Other issues

Timeframes for responding to an agency decision

Recommendation 9 – Responding to an agency decision

1. 
   An applicant should be required to respond within 30 days after receiving a notice under s 29(8), advising of a decision to reject wholly or partly the applicant’s contention that a charge should not be reduced or not imposed. The applicant’s response should agree to pay the charge, seek internal review of the agency’s decision or withdraw the FOI request.
   
2. 
   If an applicant fails to respond within 30 days (or such further period allowed by an agency) the FOI request should be deemed to be withdrawn.
   

Separately from this review, agencies have raised concern about the lack of any provision in the Act that requires an applicant to take action within a set timeframe once their contention of charges has been decided under s 29(4) and a notice issued under s 29(8). This can leave an FOI request in abeyance for an extended period. By contrast, an applicant must respond to an initial charges estimate within 30 days, or the request is deemed to be withdrawn (s 29(1)(f),(g)).

Recommendation 9 proposes that a similar approach apply to notices issued under s 29(8) advising of an agency’s decision on a contention of charges. If the applicant does not respond within 30 days or such further period allowed by the agency the FOI request is deemed to be withdrawn.

Glossary

AAT Administrative Appeals Tribunal

AAT Regulations Administrative Appeals Tribunal Regulations 1976

ACCC Australian Competition and Consumer Commission

ACT Australian Capital Territory

AIC Act Australian Information Commissioner Act 2010

ALRC Australian Law Reform Commission

APS Australian Public Service

ARC Administrative Review Council

CAALAS Central Australian Aboriginal Legal Aid Service Inc

Charges Regulations Freedom of Information (Charges) Regulations 1982

CSIRO Commonwealth Scientific and Industrial Research Organisation

CPI Consumer Price Index

DAFF Department of Agriculture, Fisheries and Forestry

DCCEE Department of Climate Change and Energy Efficiency

DoD Department of Defence

DEEWR Department of Education, Employment and Workplace Relations

DoFD Department of Finance and Deregulation

DFAT Department of Foreign Affairs and Trade

DoHA Department of Health and Ageing

DHS Department of Human Services

DIAC Department of Immigration and Citizenship

DRET Department of Resources, Energy and Tourism

DPMC Department of the Prime Minister and Cabinet

FCA Federal Court of Australia

FOI Act Freedom of Information Act 1982

FOI Commissioner Freedom of Information Commissioner

GIPA Act Government Information (Public Access) Act 2009 (NSW)

IAC Information Advisory Committee

IC review Information Commissioner review

IDC Interdepartmental committee

Information Commissioner Australian Information Commissioner

IPS Information Publication Scheme

NSW New South Wales

NT Northern Territory

NWRN National Welfare Rights Network

OAIC Office of the Australian Information Commissioner

PIAC Public Interest Advocacy Centre

Qld Queensland

reg regulation

s, ss section(s)

SA South Australia

SES Senior Executive Service

Tas Tasmania

UK United Kingdom

US United States

Vic Victoria

WA Western Australia

Appendix A: Consultation questions as set out in Part 6 of the Discussion Paper

The role of fees and charges in the FOI Act

General questions

1. 
   What is the role of fees and charges in the FOI Act?
   
2. 
   Do charges deter reasonable requests for access to information?
   

Application fees

General questions

3. 
   Is it appropriate that the FOI Act does not impose an application fee for making:
   

• 
  an FOI request?
  
• 
  an FOI request for personal information?
  
• 
  an application for internal review of an access refusal decision?
  
• 
  an application for Information Commissioner review of an access refusal or access grant decision?
  

4. 
   If you support FOI application fees, what level of fee should be imposed? Should it be subject to annual or biennial increase?
   

For applicants

5. 
   Would application fees for FOI requests deter you from making an application?
   
6. 
   Would fees for internal review or Information Commissioner review deter you from seeking review of an access refusal or access grant decision?
   

For agencies

7. 
   What effect has the abolition of application fees had on FOI requests to your agency?
   
8. 
   What effect has the abolition of fees had on applications for internal review in your agency?