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Thursday, February 08, 2007

Media shouldn't cop this lying down

The Federal Administrative Appeals Tribunal decision rejecting the Sydney Morning Herald's request for a public interest rebate on charges for a Freedom of Information application for documents about the Government's Welfare to Work policy, is another serious set back for FOI,and media use of the Act in particular.

In effect, Deputy President Walker found that an application for documents made by a profitable newspaper in the course of conducting its newspaper publishing business, failed to satisfy the requirements for a public interest rebate contained in the the FOI Act, and spelled out in government policy. That is, it couldn’t demonstrate financial hardship, and even though it showed that there was a public interest in making the documents available, this was outweighed by the fact that the making of the application was part of its day to day conduct of business.

Matthew Moore and Rick Snell have both provided comment and analysis of the decision.

In my view, there is a strong case for special consideration of access requests by the media and others acting to advance public knowledge about government's conduct of public functions.

The media in Australia either wears the current law and policy in this and other respects, for example last year’s High Court decision in the McKinnon case, (Matthew Moore's column in to-day's Sydney Morning Herald provides a brief summary of the problems) or decides to make a serious and concerted effort to do something about our law and the way it is applied.

In November News, the Australian Press Council said the publication of five articles about FOI after McKinnon was the first step towards reform of FOI law and practice in Australia. Nothing seems to have happened since.

We said at the time that the Council, in conjunction with like minded partners, needs to dip into its pocket to fund and develop a national advocacy group to promote open government principles, and FOI laws that work as a means of achieving them.

This decision would have the media jumping up and down elsewhere, particularly in the US.

Interestingly, the basis for the current Federal law and policy on charges had its genesis in US practice at the time. As Deputy President President Walker notes, a 1978 Senate Committee report prior to the introduction of the FOI Act in Australia, said the Committee believed "that there should be explicit provision, as in the United States, for reduction or waiver by agencies or ministers when the provision of information can be considered as primarily benefiting the general public rather than being for the benefit or gain of the individual applicant".

Yet, from this worthy starting point, we have now “progressed” to a situation where an applicant must demonstrate financial hardship, why disclosure is in the public interest (its not in the public interest if the information is out of date), and ensure that this is not outweighed by countervailing factors, such as routine use of the FOI Act in the course of carrying on a publishing business.

How does this compare with US Federal Government policy on fee waivers for the media in 2007?
  • there is no fee for the making of an application, for time taken in locating and retrieving documents, and for 100 pages of photocopying, where the request is from "any person actively gathering news for an entity that is organized and operates to publish or broadcast news to the public".
  • there is provision to waive or reduce other charges for example for any time involved in making a determination on an application, where the disclosure of requested information "is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and the disclosure is not primarily in the commercial interest of the requester". If a news media requester satisfies the public interest standard, the public interest will be the interest primarily served by disclosure.
The law spells out the criteria to be taken into account in making an assessment of what constitutes gathering news, public and commercial interests.

That's it - all pretty straight forward really. The public interest in this context is promoting public understanding of what goes on in government.Financial hardship is not relevant.If you primarily plan to make a dollar by flogging the information,or utilising it for commercial purposes,you don't get the waiver of additional charges. No need for tortuous decision making of the kind set out in the 25 pages of Deputy President Walker's decision.

The US model made sense to the Senate Committee in 1978. It still makes sense today.

The Australian media, collectively, and others interested in this issue should be alerting the Federal Government to the distance we have now put between practice here and the way things work there.

By the way, agencies subject to the NSW FOI Act shouldn't assume that the Federal decision provides the basis for taking the same narrow view about public interest rebates when dealing with requests from the media. The NSW Charges Order and the Guidelines in the NSW Premier's FOI Manual involve different considerations.


  1. MajorCynic9:15 pm

    I hadn't seen this blog before, but it looks like a good forum, and one I will enjoy reading.

    On the Matthew Moore blog, Peter Timmins suggested I run my sceptical comments on the Peatling decision here. (They had mysteriously disappeared on the way to Matthew's blog). I run them because they represent an unfashionable view - I have and will run the opposite argument if asked by someone paying my wages.

    I wonder whether the core substantial issue in Peatling was the questionable plausibility of the evidence (which, however, went unchallenged and uncontradicted) that the SMH would not make money out of running stories based on the documents sought. I'm not suggesting that the evidence was in any way dishonest, merely that it was difficult for someone outside the media to understand. The SMH is in the business of putting words on bits of dead tree and selling it. The words it will use should self-evidently be words that someone somewhere might want to read. Otherwise, they'e wasting time and the money of their shareholders (as well as some trees).

    In this case, the SMH had been asked to pay about $13k, which is a bit more than 0.05% of the total profit of Fairfax. The SMH asked for a discount of 50% - so that they would only have to pay 0.025% of their profit. The real cost to DEWR of providing the service (not including litigation related expenses) would have been some considerable distance north of $65,000. In other words, the SMH, already qualified to receive a $50,000 plus gift from the taxpayer (courtesy of the gross disparity between FOI charges and real cost), was holding its hand out for another $6.5k of public money. A rich man with a begging bowl is not an attractive sight.

    The SMH was buying a raffle ticket if it paid the money. The information might be laden with the potential for a dozen strong stories. Or it might be an amazingly dull piece of analysis (as a lot of these things are). It wanted the raffle ticket, and it wanted the taxpayer to pay for it. It's a bit rich when the Fairfax profit is about 50,000 times the average wage.

    (The real villain here is the fact that FOI charges, which onmce represented a moderate proportion of real cost, have fallen so far behind the real cost that what might be called the public interest subsidy - the shortfall the agency experiences - is growing larger every year, putting pressure on agencies to ration the subsidy more tightly. After all, if DEWR had not been compelled to donate a lot of money to the SMH - should it pay the charges - it could probably have employed someone to work on a counter, or answer telephones or generally provide better service to the public. The SMH wanted to take, and the public was going to have to pay).

  2. Welcome aboard. You will see I take a different view about what the real problem is, but appreciate your input and look forward to further dialogue.