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Tuesday, February 12, 2008

$157.53 too much to pay when priinciple is at stake

Qualifying for a rebate or remission of freedom of information charges under the Federal Freedom of Information Act has always been tough going, but a recent Administrative Appeals Tribunal decision opens the door just a chink further.

The case involved prominent Melbourne businessman Alex Encel who sought access to information about government expenditure on supporting digital television, but then contested the Department's requested for a deposit of $157.53 (the total estimated charge was $630.11). Some people (good on them) have a real interest in arguing points of principle.

Encel in this case won the point that no charges should apply because of the public interest in the giving of access to documents not in the public domain.

Deputy President Forgie makes it clear (paragraph 78) that the law doesn't require that the payment of the charge would result in financial hardship, and that the giving of access is in the public interest, parting company on this point with some other Tribunal decisions. The charge can be reduced or remitted if either applies, or any other relevant factor justifies. She says (paragraph 82) that Deputy President Walker in the Peatling decision gave consideration to to questions which she regards as not relevant - whether the information is potentially misleading or confusing; whether parts of the information have been overtaken by events and are out of date; whether disclosure might lead people to act in a way which has adverse impacts on themselves or others.

Deputy President Forgie also decided (paragraph 90) that a government agency is wrong to give consideration to whether the documents "if released will come to the attention of the public or a considerable portion of the public". The issue is simply whether the "giving of access", and the consequence of that is in the public interest.

The rules are far too complex, restrictive and subjective. Hopefully another matter for close re-examination soon.

3 comments:

  1. Amber1:13 pm

    Hi Peter
    I stumbled across your blog searching for information on the FOI Act and Queensland legislation and wondered if you knew where I could find the details I'm after.

    I work for a private domiciliary nursing agency and am in the process of writing our policies and procedures manual. I need to know whether we, as a private company, are obligated to provide patient access to their Health Record.

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  2. Hi Amber,
    Private health service providers in most cases will be subject to the private sector provisions of the Federal Privacy Act (in force since Dec. 2001). This does provide a person with a right of access to personal information held, with some exceptions. For a start have a look at the Privacy Commissioner's website www.privacy.gov.au
    There is quite a bit there about health information and related issues.

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  3. Anonymous10:11 am

    Hi Peter

    Thank you for the link. I have done some trawling and found the Amendment applying to the Private Sector.

    This page, however, states repeatedly that the private sector was exempt from FOI principles - is it dated?

    http://www.aph.gov.au/Senate/committee/clac_ctte/completed_inquiries/1996-99/medical/report/c05.htm

    That was where my confusion arose from.

    Cheers
    Amber

    ReplyDelete