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

A new scale of charges – processing

Recommendation 2 – FOI processing charges

1. 
   The FOI processing charges referred to in 2.3 and 2.4 should apply to all processing activities, including search, retrieval, decision making, redaction and electronic processing.
   
2. 
   No processing charge should be payable for the first five hours of processing time.
   
3. 
   The charge for processing time that exceeds five hours but is ten hours or less should be a flat rate charge of $50.
   
4. 
   The charge for each hour of processing time after the first ten hours should be $30 per hour (or part thereof).
   
5. 
   No processing charge should be payable for providing access to a document that contains the applicant’s personal information.
   

General comments

The current scale of charges set in 1986 is both low and inappropriate. It draws an artificial distinction between search and retrieval that is charged at $15 per hour, decision making that is charged at $20 per hour (after the first five hours), and electronic production that is charged at actual cost. Those different rates seem to reflect a view that search and retrieval can be simpler tasks that are undertaken by relatively junior officers, and that manual and electronic retrieval and processing require different skills. However, agencies noted that all stages of FOI processing may be undertaken by the same officers.

Nor does the current scale necessarily benefit applicants, other than that the hourly rates are low and have not increased for more than 25 years. The five free hours applies only to decision making and not search and retrieval. Applicants derive little guidance from the current scale as to the steps or options that are open to them for minimising or reducing charges. Applicants sometimes complain that they are taken aback when they first receive a charges notice from an agency. The separate charging categories can also complicate discussions between agencies and applicants about clarifying or reducing the scope of requests to contain FOI processing costs.

Before explaining below the proposed new and simplified scale of charges, I will note four other proposals that were raised in this review that I have not adopted. One was that charges be determined by the number of documents or the amount of information released. This proposal could fail the test of ‘uncomplicated administration’ that should underpin a charging framework. Charging by the number of pages could be practically difficult for information that is digitised, for records that are conveyed electronically to an applicant, or that require redaction to remove exempt material.

A second proposal was to charge according to the type of applicant requesting the information. This proposal raises logistical and practical difficulties for agencies in trying to identify and classify applicants. It potentially conflicts with a fundamental FOI principle that an applicant’s reasons for making an FOI request should have no bearing on processing the request.

A third proposal was to impose a graduated or sliding scale, under which the hourly processing rate would increase in steps according to the number of hours of processing time. At the heart of that proposal is a concern to restrain requests that are unreasonably large or difficult to manage. I have approached that issue in a different way, by recommending a new charges scale in Recommendation 2 and a 40 hour ceiling on processing time in Recommendation 4.

The fourth proposal was to impose higher charges or other restrictions on FOI applicants who are not Australian citizens or residents. It would be practically difficult to apply such a test. The FOI Act provides that an FOI request can be lodged electronically (s 15(2)(c)), and it is open to a person to appoint a representative to make an FOI request on their behalf or to do so using a pseudonym.²⁵⁰ It is also a settled feature of Australian FOI practice that the declaration in s 11(1) that ‘every person’ can make an FOI request has not been limited geographically.

Explanation of recommendation

Recommendation 2.1: This recommendation takes up the point discussed above, that the same processing charge should apply to the various administrative activities that are part of FOI processing. Combining those activities into a single processing rate will simplify the charges framework and make it easier for agencies to administer and respond promptly to applicants.

Recommendation 2.2: This recommendation builds on a principle adopted in the FOI Act in 2010, that no charge applies to the first five hours of decision making time.²⁵¹ The recommendation extends that principle to include search, retrieval and electronic processing.

Providing five hours of free processing time enables all members of the public regardless of their financial resources to exercise the right of access to government information conferred by the FOI Act. This also encourages applicants to make requests that are not too broad and can be processed simply and easily by agencies.

Recommendation 2.3: A flat rate charge of $50 would apply whether a request took, say, six or nine hours to process. The explanation for this recommendation is that $50 is a moderate charge that would be simple both to administer and understand.

This flat rate charge, together with the recommendation to include search and retrieval within the five free processing hours, would mean a lower charge for applicants in nearly all instances compared to present charging practice. It would be clear to an applicant that the processing charge could be limited to a maximum of $50 if the request was framed with a view to being administered in less than ten hours. An agency would be required to assist an applicant to achieve that result. In any case, an agency may decide not to impose the $50 processing charge due to the cost of administration.²⁵²

Waiver of charges on financial hardship or public interest grounds may also be less of an issue for agencies where the estimate processing charge is only $50.

Recommendation 2.4: A higher processing charge of $30 per hour beyond the first 10 hours would encourage applicants to frame requests that can be administered in less time. I consider also that $30 per hour (which is higher than the current decision making rate of $20 per hour) is appropriate. A $30 rate is not so high as to discourage genuine requests and is lower than if indexation had applied since 1986. It will also be open to an applicant in an appropriate case to request waiver or reduction of the $30 hourly rate on financial hardship or public interest grounds.

The $30 hourly rate should apply both to a full hour and to part thereof: that is, the same charge will apply for 14.5 as for 15 hours. A more fractional approach can be more complex, particularly at the level of calculating precisely the number of minutes spent by an officer in locating and reading a requested document or information.

Recommendation 2.5: The removal of charges from personal information requests commenced in 1991 when a cap was imposed, and was extended in the 2010 reforms which provided that no processing charge is payable. The rationale was explained in the 1996 joint report by the ALRC and ARC:

[A]ccess to one’s own personal information should generally be free. Citizens should be able, subject to the FOI exemptions, to obtain access to information about them that is held by the government without financial barriers. In addition, it should be noted that there is no provision under the Privacy Act for a record keeper to impose a charge for providing access to personal information.²⁵³

No disagreement with this principle was raised by any agency or other party during this review of FOI charges. There was general acknowledgement that the cost of handling personal information requests should be borne by government.

The only concern raised by agencies was that some personal information requests are large and complex and can be costly to process. That point is accepted in the later recommendation that the 40 hour limit on an agency’s obligation to process an FOI request should apply to all requests, including those for personal information.