Cost recovery waylays FOI access

A portent of things to come?

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The Agricultural and Veterinary Chemicals Legislation Amendment (Removing Re-approval and Re-registration) Bill 2014 is one of a number of bills in the pipeline designed to reduce "red and green tape on business by at least $1 billion per year," in this case, "the burden imposed on the Australian economy and agricultural sector." It's a hot potato involving significant changes to the regulatory system administered by the Australian Pesticide and Veterinary Medicines Authority.

The Bill, introduced in March, passed the House this week. Labor waved it through, reserving its position in the Senate until the Rural and Regional Affairs and Transport Legislation Committee reports by 16 June.

While not the key focus, the Bill includes this amendment, as explained in the Second Reading Speech:

Obliging access to information about chemicals that the APVMA holds
Currently, the APVMA is often asked to provide information to the company that is responsible for a chemical product about its registrations. This information is then provided under the Freedom of Information Act 1982 (FOI Act).
Payments for information sought under the FOI Act are not covering the costs of providing the information. As a result, companies that do keep good records are subsidising the records costs of those that do not.
The bill amendments will allow persons to apply to the APVMA for copies of documents it holds about a chemical for a fee. This provision will not allow release of confidential commercial information unless the recipient was entitled to the information. For example, because they were the person that provided the information.
Schedule 2 of the bill proposes to 'turn off' access under the FOI Act for these documents but will not prevent access to the information. The FOI Act anticipates this by allowing an exemption for access to documents (at paragraph 12(1) (b) of the FOI Act) that is open to public access in accordance with another enactment, where that access is subject to a fee or other charge.

Section 12(1)(b) excludes from FOI access "a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge."

One hundred and fifty FOI applications were received during the 2012-13 year according to the APVMA Annual Report.

But while the Second Reading conveys the impression that more cost recovery is justified because poor record keepers are using APVMA through FOI to find their own documents, the situation as revealed in the annual report is that registrants and approval holders also seek information relating to other companies, and less frequently, individuals, community groups, policy institutions or industry bodies also seek access to documents. Requests for information generally relate to:

• formulations and product specifications
• active constituent specifications
• identity of manufacturing sites
• manufacturing and formulating processes
• certificates of analysis and declarations of composition
• analytical methods, validation methods and batch-analysis results
• data submitted with applications, including studies, reports and trial results
• other information contained on relevant files for certain applications, such as application forms, evaluation reports and adverse experiences.

The wording of the amendment is such that anyone seeking a document held by APVMA "in relation to an approved active constituent or registered chemical product" (presumably all of the above) will be required to pay the prescribed fee, something more closely aligned to cost recovery by some government calculation. 

Access is likely to become a lot more expensive, not just for the so called poor record keepers.

8W  Access to certain documents in the possession or custody of the APVMA

 (1)  A person may, in writing, apply to the APVMA for a copy of, or extract from, a document (other than a document in any part of the Record or Register) in the possession or custody of the APVMA in relation to an approved active constituent or registered chemical product.

 (2)  The APVMA must provide the copy or extract to the person if the person pays the prescribed fee (if any).

Note 1:See subsections 17(4) and (5) and 18(4) and (5) for access to the Record and Register.

Note 2:This subsection does not authorise the disclosure of confidential commercial information whose disclosure would otherwise be prohibited by section 162: see section 8X.

8X  Confidential commercial information must not be disclosed under certain provisions

 (1)  Engaging in conduct in the performance of functions or duties, or the exercise of powers, under any of the following provisions does not authorise the disclosure of confidential commercial information whose disclosure would otherwise be prohibited by section 162:

                     (a)  subsection 8F(2);

                     (b)  subsection 8S(2);

                     (c)  subsection 8W(2);

                     (d)  subsection 17(4) or (5);

                     (e)  subsection 18(4) or (5);

                      (f)  subsection 34AB(2);

                     (g)  subsection 34AC(2).

            (2)  Subsection (1) has effect despite subsection 162(1A).

It remains to be seen if other moves towards cost recovery for access to documents emerge under the banner reducing "red and green tape on business." To date cost recovery has not been part of the FOI 'right to access' equation.