$50000 a high water FOI mark

A freedom of information request by The Sun-Herald to the Department of Immigration and Citizenship to release a video showing guards removing asylum seekers from the Villawood detention centre in preparation for their return to Christmas Island after attending funerals for victims of the December boat tragedy has been granted - providing the paper pays $53,093.

The spluttering passed and the Sun Herald has lodged an appeal arguing that in the public interest the cost should be substantially reduced, if not waived. There might be a question also that the charge has been wrongly assessed, if as the paper points out it has someone who could pixelate and edit the video for privacy for $7500 compared to the Department's $38000 charge for this task.

Those involved will be thumbing through OAIC Guideline Part 4 – Charges for providing access PDF and the decision by Freedom of Information Commissioner Popple last month in Besser and Department of Infrastructure and Transport [2011] AICmr 2 (17 March 2011) PDF. Besser, a Sydney Morning Herald journalist succeeded in having charges for an application for a number of internal audit reports reduced by 50% after Commissioner Popple found the giving of access to the documents was in the general public interest.

Important considerations that swayed the decision in this case were that the disclosure of the documents sought would add to information that is already publicly known [16] and

"the content of the documents and the context of their release. I have not examined the 12 documents in question, but the schedule of documents reveals that a number of them are reports of audits of the Department’s internal operations (eg ‘Review of Corporate Credit Cards’ and ‘Review of Cash Withdrawals from Corporate Credit Cards’) and its external operations (eg ‘Airport Curfew Dispensation’, ‘Review of Better Regions’ and ‘Review of Nation Building — Economic Stimulus Plan programs’). These... have the potential to reveal important information about whether the Department is using Commonwealth resources consistently with its obligations under the FMA Act (such as the requirement to manage its affairs in a way that promotes the efficient, effective, economical and ethical use of Commonwealth resources)[25].

As Commissioner Popple points out a finding that giving access to the documents was in the general public interest justifies a decision to apply the 50% rebate, but it is irrelevant to matters yet to be decided by the agency regarding access and whether disclosure on balance would be contrary to the public interest:

29. The Department has not yet made — and is not required to have made — a decision whether to give access to the documents that Mr Besser has requested. If Mr Besser agrees to pay the reduced charge, then the Department will have to make that decision. In doing so, the Department may conclude that one or more of the public interest conditional exemptions in Division 3 of Part IV of the FOI Act apply. In that event, the Department will need to apply the public interest test in s 11B. That test is different from the public interest test for the purposes of deciding to reduce or to not impose a charge, which has been considered in this review.
30. The fact that giving access to documents is in the general public interest for the purposes of reducing or not imposing a charge (under s 29(4)) does not mean that giving access to those same — conditionally exempt — documents cannot be, on balance, contrary to the public interest (under s 11A(5)).

Yes, but the law in this respect is confusing nonetheless.

NSW legislative change represents (I hope) an improvement by providing for a 50 per cent reduction if the agency is satisfied that the information applied for is of special benefit to the public generally.