Federal FOI fees and charges reviewed

The Australian Information Commissioner, Professor John McMillan, has delivered the fees and charges review. When the Commonwealth law was reformed and amended the fess and charges structure was left out pending the commissioner’s review.

(I was recently part of a panel on Radio National’s Law Report discussing the report. The podcast is here.)

Fees and charges for processing a FOI/RTI request used to cover information retrieval time, decision making time (what information to redact and what to release) and fees for making copies. The report concludes that the current old charges framework is too complex and outdated and does not encourage dialogue between the requester and agency.

The review make a number of recommendations informed by the following over arching principles:

  • FOI is a democratic right.
  • The lowest reasonable cost should be the guiding principle when determining the charge.
  • The charges framework should be easy to understand and administer.
  • Informal access should be the first option when requesting information.

The most important recommendation is the informal avenue provided by so called ‘administrative access’. Simply put: you phone and/or email the agency asking for the information. The review suggests that agencies should be required to explain/publicise admin access on their web sites. If a requester skips the admin access option and lodges an FOI request straight away, the agency has the option to charge a $50 application fee.

No charge for the first five hours of processing, less than 10 hours a $50 flat rate. Each hour after 10 hours – $30/hour.

The 40 hour ceiling on processing time is controversial. This would give agencies the power to refuse to process a request if it’s deemed to take more than 40 hours, one week, of full time work for one staff member. This would replace the current complex ‘practical refusal mechanism’ in the Act. The agencies estimate (how the agency arrived at this decision) can be reviewed by the commissioner. This recommendation is the one to watch if/when it’s amended to the Act. It does open up a potential loop hole for agencies and the Information Commissioner’s office will have to police it. Michael McKinnon, Channel 7′s FOI editor certainly thought it would be abused in the Law Report panel discussion.

Three recommendations are clearly geared to encourage proactive disclosure of information and positive engagement by government agencies:

Waiver: the option to apply for charge/fee waiver if you’re in financial hard ship and if the information is of ‘special benefit to the public’. One might ask why the ‘public interest’ term was replaced?

Reduction for delays: if the agency breaks the deadline set by the law fees and charges can be reduced by 25, 50 or 100% depending on the delay. This is a concrete way of putting some teeth behind the time frame stipulated by the Act.

Finally, the fee for internal reviews are scrapped. The applicant still has the option to go straight to the FOI commissioner, but will then have to pay a $100 fee. This is to encourage agencies and the applicants to engage seriously with the internal review process. This is one to watch closely too. The previous internal review process was, in most cases, a waste of time. Any change will be closely connected to a culture change in terms of attitudes toward information access.

Some media commentary has focused on the fees and the 40 hour ceiling but largely disregarded the point of the informal ‘administrative access’. In my view this is unfair. If, and it’s a big ‘if’, the administrative access scheme is implemented and it works then this is far preferable to the formal FOI request process – it’s a win-win. Yet again, as so many times before, I’ll point out that the greatest challenge is to affect the cultural change needed to support administrative access. We can fiddle and change the law until you-know-what-freezes-over. Legislative reforms will have little practical impact on information access unless the attitude toward information ownerships changes in the public service and governments.

The current attitude remains one of ownership. It needs to change to holding the information on behalf of the public and facilitating information access. This change is akin to turning a number of supertankers simultaneously and requires consistent political will and funding by consecutive governments. We’re probably looking at a time line lasting decades. Remember that we’re attempting to change a culture of secrecy (built on the tradition created by the UK Official Secrets Act) that has been in place since the beginning of Australian governments. You won’t change a 100 year plus tradition in five years. The time between the first federal Act in 1982 to 2010 was largely wasted as the FOI Act 1.0 offered too many loop holes to force and encourage a change of culture.

The greatest threat to the change process, in my view, is that there are signs that the current federal government are displaying signs of FOI reform fatigue. One example is that McMillan’s office, Office of the Australian Information Commissioner, is not yet fully staffed. At the moment it seems the turning of the super tankers have slowed down.