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.
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.