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

Explanation of the proposed changes

The proposed changes are explained fully in this report. The theme throughout is that applicants and agencies can equally benefit from a new charges framework that is clear, easy to administer and understand, encourages agencies to build an open and responsive culture, and provides a pathway for applicants to frame requests that can be administered promptly and attract little or no processing charge. There are three primary ways for bringing this change about.

The first is by encouraging agencies to develop, and applicants to use, administrative access schemes before resorting to the formal legal processes of the FOI Act. Administrative schemes can play a key role in meeting the objectives of the FOI Act. They can provide quick and informal information release in a way that can reduce the cost both to applicants and agencies. Importantly, they complement and do not detract from the legally enforceable right of access under the FOI Act. In fact, the discussion that occurs between applicants and agencies at the administrative access stage can assist the smooth operation of the FOI Act and bring about targeted and quicker document release if FOI processes are later used.

The second is by introducing a new scale of FOI charges that is clear and straightforward to administer. The new scale will markedly benefit applicants whose requests can be processed in less than 10 hours. Personal information requests will remain free of processing charges. A new ceiling of 40 hours on processing time would replace the ‘practical refusal’ mechanism in the FOI Act that makes it difficult to decide when a complex or voluminous request imposes an unreasonable administrative burden upon an agency. This will also provide a clear standard for deciding when consultation should occur between an agency and an applicant about revising and narrowing the scope of a request that appears unmanageably large.

The third is by reinforcing the important role that internal review can play in quickly and effectively resolving a disagreement between an applicant and an agency about a document request. Internal review is generally quicker than IC review and enables an agency to take a fresh look at its original decision. An applicant could still apply directly for IC review but would be required to pay an application fee of $100 (subject to some exceptions). This proposal builds on a changing mood within government since the 2010 reforms to attribute greater importance to internal review and to treat it as a valuable step in resolving access requests.

Part 1: The Freedom of Information Act 1982 and the existing charges regime

Overview of the FOI Act

The declared objects of the FOI Act are:

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  to give the Australian community access to information held by government, by requiring agencies to publish that information and by providing for a right of access to documents
  
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  to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making and increasing scrutiny, discussion, comment and review of government activities
  
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  to increase recognition that information held by government is to be managed for public purposes and is a national resource
  
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  to ensure that powers and functions in the FOI Act are performed and exercised, as far as possible, so as to facilitate and promote public access to information, promptly and at the lowest reasonable cost.⁹
  

The FOI Act promotes government accountability and transparency by providing a legal framework for people to request access to government information. This right of access extends to government information about policy making, administrative decision making and government service delivery. The Act also gives people the right to access information that government holds about them, and to request corrections to that information if they consider it to be incorrect, incomplete, misleading or out of date.

The FOI Act commenced operation on 1 December 1982. It applies to all Australian Government agencies, with certain exemptions as set out in s 7. Ministers (including parliamentary secretaries) and their offices are also covered by the FOI Act, although the Act applies only to the ‘official documents’ of a minister and not those of a personal nature or relating to the minister’s activities as a member of a political party or a member of Parliament. Section 3A of the FOI Act states that the Act does not prevent or discourage an agency or minister from releasing documents, including documents that are exempt under the FOI Act, as long as there is no legal restriction on disclosure.

Reform of the FOI Act occurred in 2010 following a 2007 election commitment by the Australian Labor Party. The Freedom of Information (Reform) Act 2010 and the Australian Information Commissioner Act 2010 (AIC Act) commenced on 1 November 2010. These Acts introduced major changes to the FOI landscape, including:

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  introducing a presumption of openness and maximum disclosure, based on publication of information and the release of information upon request unless there is an overriding reason not to do so
  
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  requiring the proactive release of an increased range of information through a new Information Publication Scheme (IPS) for Australian Government agencies from 1 May 2011
  
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  establishing the independent statutory positions of the Australian Information Commissioner and Freedom of Information Commissioner (FOI Commissioner)
  
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  removing application fees for FOI requests, internal review of FOI decisions, and requests to amend or annotate personal records
  
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  removing charges for FOI requests for personal information and making the first five hours of decision making time free for all other requests.
  

These Acts also established the OAIC, an independent statutory agency headed by the Information Commissioner with the support of the FOI Commissioner and the Privacy Commissioner. The former Office of the Privacy Commissioner was integrated into the OAIC. The OAIC combines the functions of information policy and independent oversight of FOI and privacy protection in a single agency to promote open government and advance the development of consistent, workable information policy across Australian Government agencies.

Within the OAIC, the FOI Commissioner is primarily responsible for FOI functions such as day-to-day administration of FOI enquiries and complaints, undertaking merit review of FOI decisions, investigating complaints about FOI administration and monitoring agency compliance with the FOI Act. Agencies must have regard to guidelines issued by the Information Commissioner under s 93A of the FOI Act (FOI Guidelines).¹⁰