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

Fees and charges collected under the FOI Act

Between the commencement of the FOI Act in 1982 and 30 June 2011, agencies reported a total cost of $498,364,739 to process the 906,639 FOI requests received during this period. The total cost includes staff hours spent on FOI matters and estimates of non-labour costs directly attributable to FOI, such as training and legal costs. However, these figures are an estimate and it is generally understood that agencies rarely keep exact records of hours spent by officers on FOI matters and other non-labour costs incurred.

The total amount of fees and charges collected since the commencement of the FOI Act represent 2.08% of the estimated total cost of administering the FOI Act during the same period. Fees and charges collected in any year have consistently been less than 5% of the total cost of administering the FOI Act, ranging from 0.33 % (1982–83) to 4.91%

(1994–95), with the yearly average at 2%. Figure 3 sets out the total costs, requests and fees and charges collected since 1982–83.⁴³

Figure 3: Total costs, requests and fees and charges collected since 1982–83

* Seven months of 1982–83 only.

Part 2: The role of fees and charges under the FOI Act

Background

Fees and charges have been a part of FOI in Australia since 1982. During the life of the Act, there have been efforts to find the right balance between principles of cost recovery, ‘user-pays’, accessibility, citizen rights and government accountability.

Early on, before the full impact of the legislation was known, charges were viewed as a way of managing demand for government documents. In 1979, the Senate Standing Committee on Legal and Constitutional Affairs stated:

There are practical reasons also why a power to levy charges must exist. If documents could be obtained free of charge, there is a distinct danger that agencies could be beleaguered with requests for most documents that are brought into existence.⁴⁴

Charges provided a means of deterring frivolous and excessively broad FOI requests. The original FOI charges regime established an hourly charge for search and retrieval, along with charges for document inspection and copying. In 1985 and 1986, FOI charges were amended to incorporate, first, an application fee and then an hourly charge for decision making on FOI requests.

On the subject of FOI charges, the second Committee report in 1987 expressed concern that:

… too much emphasis has been placed upon economic factors (such as cost recovery) at the expense of the admittedly unquantifiable social (and political) benefits derived from the right of access under the Act.⁴⁵

Further, the Committee agreed with the view it expressed in its 1979 report, that charges needed to strike a balance between the ‘user-pays’ principle (as a deterrent to trivial, overly-broad or poorly framed requests) and ensuring that charges did not limit the range of people able to use the legislation.⁴⁶

The 1987 Senate Committee report recommended capping the number of hours an agency could charge for search and retrieval and decision making time, even though the agency may spend further time processing a request. Placing a cap on chargeable hours would mean that applicants would be less likely to be penalised for an agency’s inefficiency or poor record keeping. In addition, applicants would know in advance the maximum possible charge that might be imposed.

Amendments to the Charges Regulations in 1991 partially implemented this recommendation by capping the charge for requests for personal information of the applicant, while leaving the charges for all other requests uncapped.⁴⁷

In 1994, the Attorney-General commissioned the Australian Law Reform Commission (ALRC) in partnership with the ARC to review FOI legislation. The ALRC-ARC report stated that charges should be balanced with democratic accountability. The ALRC-ARC noted:

A strict application of the user-pays principle would almost certainly guarantee that the Act would fail in its objectives. Yet it can be argued that totally free access may place an unreasonable financial and administrative burden on agencies. In the Review’s view, applicants should make some contribution to the cost of providing government-held information but that contribution should not be so high that it deters people from seeking information. The fees and charges regime should reflect the fact that the FOI Act is primarily about improving government accountability and the public’s participation in decision making processes, not about generating revenue or ensuring cost recovery. ⁴⁸

The ALRC-ARC report recommended abolishing charges for processing requests for personal information. Charges (including the application fee) should be retained for other requests, with the application fee being used as credit towards any charges imposed. It also recommended that the application fee for internal review be abolished and that the scale of charges be set by an FOI Commissioner.⁴⁹

Changes in 2010

The 2010 reforms to the FOI Act made significant amendments to the charges regime, some of which implemented recommendations made by the ALRC-ARC. The amendments aimed to reduce the cost of making a request for access under the Act.⁵⁰ These included:

• 
  abolishing application fees for requests and internal review
  
• 
  abolishing charges for requests involving an applicant’s own information
  
• 
  providing the first five hours of decision making time free of charge for requests involving non-personal information
  
• 
  providing that no charge is required to be paid where an agency or minister fails to notify a decision within a period prescribed in the Act (including a permitted extension period).⁵¹