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.

Dr Hawke's prescription on charges

Sean Parnell in The Australian this morning includes in his report of Hawke highlights that the recommended charge for processing a request that takes between 5-10 hours will be a flat fee of $50.

That's what the discussion in the report suggests. However the relevant recommendation on charges, the basis for my summary pointing to something different, reads (emphasis added):

Recommendation 22(a)

The Review recommends that a flat rate processing charge should apply to all processing activities, including search, retrieval, decision-making, redaction and electronic processing. No charge should be payable for the first five hours of processing time. Processing time that exceeds five hours but is ten hours or less should be charged at $50 per hour. The charge for each hour of processing time after the first ten hours should be $30 per hour. 

The flat $50 to cover up to 10 hours would be in line with Professor McMillan's recommendation in his FOI Charges Review March 2012.

Just a typo in 22(a)?

Or maybe not. Dr Hawke doesn't mention a maximum charge, something specified in the McMillan review as $950, the combined effect of the flat $50 for the first ten hours , and $30 per hour for the 30 hours thereafter before the proposed 40 hour cut off point is reached. On the other hand the no typo result would be $50 per hour for hours 6-10, plus $30 for each hour up to the cap - all up $1200.

FOI charges remain a barrier to access and a cost to the taxpayer

The Australian reports today on the refusal by the Department of Prime Minister and Cabinet to waive charges for the release under the Freedom of information Act of 80 pages to Senator Abetz concerning appointments to the Levenson media inquiry, on grounds that  the documents would not be of interest to anyone other than "a limited section of the community, namely the media."  A reminder that the complex, resource intensive and time consuming charge regime remains a flaw in the Commonwealth system, even though  application fees have been abolished.

The Australian information Commissioner reported just that in his review released in March: "The charging framework is not easy to administer, the cost of assessing or collecting a charge can be higher than the charge itself, and the scale of charges is outdated and unrealistic," Professor McMillan said.

This report concludes that further change to FOI legislation is needed. A new charges framework could enable the FOI Act to work better in providing public access to government information without impairing the other responsibilities of agencies and ministers....The prevailing theme in all consultation for this report was that the FOI Act is a vital statute that must be supported by government and made to work in an optimal manner. My recommendations for reform are framed in that spirit. I commend them to the Australian Government for close consideration.

Six months on that's the last heard of the reform proposals, in public at least. Professor McMillan did say he was interested in hearing from others, was considering further consultation and possibly a supplementary report to the Attorney General. But in the meantime, apart from a line of applicants frustrated by the charge hurdle in an age where speedy access is the go...

Who knows how much time and cost to the taxpayer continues to be involved in agencies  calculating estimates,keeping track of time, seeking deposits, considering applications for reduction or waiver on financial hardship or public interest grounds, calculating charges and chasing up requests for payment etc, etc? All that before further time and cost absorbing complex guidance on the subject and arguing the toss on matters where the applicant seeks review on grounds a charge has been wrongly assessed or should be reduced or not imposed.

To date, the Office of Australian Information Commissioner has published 20 review decisions in 2012. Ten relate to charges. In three cases-33%- the commissioner set aside the agency decision. 

Many matters don't go to a formal decision so it's not known how large charge issues loom in the overall review workload of the office. But it is clear that time and cost spent on this is too much at every level.

On the "whatever happened" theme:
In NSW, to Premier O'Farrell's commitment while in opposition to abolish application fees? And to the review of fees and charges by the NSW Information Commissioner that kicked off with a consultation paper and a survey in October last year and seems to have dropped off the radar since?

And in Tasmania has anyone had a look at the consequential effects on applicants, and savings in administrative costs as a result of the decision in 2009 to retain a small application fee and abolish other charges?

If access to information law has the worthy public purpose of increasing public participation in government activity, the fees and charges regime, managed at significant cost to the taxpayer, shouldn't block the way.