FOI fees and charges proposals raise questions and uncertainties

The Department of Prime Minister and Cabinet set 11 January for submissions on the Freedom of Information (Fees and Charges) Amendment Regulations Exposure Draft, presumably because something close to business as usual would return to Canberra,  so I scrambled a few thoughts together yesterday to meet the deadline. My initial reaction when the Exposure Draft was released last month had been positive, with qualifications, and there are still good things in this. But closer examination raised questions about both the policy approach and the detail as it applies to access to non-personal documents.

The Department doesn't intend to post comments received on the Exposure Draft (?) but if you are interested,  the submission is here. (If you were getting a troublesome pop-up it has now been removed.) Discussion, observations or corrections are welcome.

Key points raised were:

• on a cost-benefit basis, is abolishing the application fee but retaining a modified charging regime, in the interests of addressing excessive cost to users, at the lowest administrative cost? Significant resources will still be involved to keep track of time, consider a range of related issues and communicate with applicants about charges, for relatively little return. $262,000 in charges was collected in the year to June 2009. Overall agencies estimate FOI cost $30 million to administer. I've no idea how much of that relates to time-keeping/ charges, but it's probably of some significance. A more cost effective approach might have been to retain an application fee for non-personal applications (an administatively simple process) and abolish charges. Tasmania has already decided to go this way in the Right to Information Act to commence 1 July 2010.

• if the FOI Act is to play a key role in improving citizen engagement with government (as the proposed new object section in the FOI Reform (Amendment) Bill makes clear) individuals who seek access to documents concerning government functions should be encouraged not discouraged by the charges regime. The proposal is that an individual on such a path gets one hour free processing for a non-personal application. Journalists and non-profit organisations get five hours free. An applicant of any stripe might also qualify for a reduction or remission on public interest grounds but assessing and deciding these claims also chews up administrative resources.

• is five hours much of a concession in any event, given that the average time involved in processing non-personal applications seems to be anything up to 30 days in agencies that deal predominantly with this type of request? Why five hours?

• is the definition of "non-profit" organisation satisfactory given that it probably extends beyond NGOs such as community and interest groups to every credit union and co-operative in the country and leaves a fair bit of uncertainty; what arises from the absence of a definition of "journalist"; and is it sensible to leave definitional issues largely for each agency to be"reasonably satisfied" the applicant is of specified status, given the information commissioner will only have a discretionary power to issue guidelines that have no mandatory effect?

• if charges are to be retained, a better approach might be to provide a concession to anyone who seeks access for purposes consistent with the proposed object section of the Act, regardless of their status. Using those words, something like a concession for any applicant who "individually or on behalf of others seeks access to documents for the purpose of participating in Government processes or for the purpose of scrutiny and review of those Government activities that impact on members of the public generally or in a particular instance."

• If we still want to single out "journalist" for mention, a concession for those who fit a broad definition based on functions, also linked to the object of the Act, along the following lines, would cover those including new media types such as bloggers, who seek access for purposes associated with the Fourth Estate role of journalism : "a person who seeks access to documents for the purpose of gathering information about the conduct of Government functions for dissemination, or possible dissemination to the public, or in order to promote scrutiny, discussion, comment or review of Government activities.