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Friday, April 08, 2011

FOI can cost a packet, so fine print on discounts warrants a close look

Aussie Legend WikiMedia Commons
Access to government information under right to information laws can involve more than a brass razoo, except in Tasmania where an application fee but no other charges apply. So circumstances where waiver, reduction or rebate may be available are of particular interest to those who use the acts. In NSW the now repealed Freedom of Information (Fees and Charges Order) 1989 relating to circumstances in which a rebate could be given on "public interest" grounds gave rise to problems, suggesting as it did that the issue came down to whether there was a public interest in disclosure of requested documents. Clause 6 provided (emphasis added):
The fees and charges payable by-
(e) an applicant whose application relates to information that it is in the public interest to make available are to be half the fees and charges that would otherwise be payable in respect of that application."
The replacement Government Information (Public Access) Act, reflecting recommendations in the Ombudsman's 2009 Report, took a different approach, clearly distinguishing the decision on a rebate on charges from a decision concerning access to the requested information. S 66 provides:
Discounted processing charge—special public benefit
(1) An applicant is entitled to a 50 per cent reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally...

(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.
The NSW Information Commissioner has released Guideline 2: discounting charges – special benefit to the public generally.  Overall useful and less legalistic than other schemes, but two issues worthy of comment, and a query about whether FOI charge systems are worth all the effort.

The status of the Guideline.
Any guideline issued on this topic is according to s 66, "for the assistance of agencies."  The introduction to the Guideline however refers to powers under sections 12(3) and 14(3) of the GIPA Act that enable the Commissioner to issue guidelines to assist agencies regarding the public interests in favour of, or against, disclosure. This guideline doesn't concern public interests in favour of or against disclosure. The Guideline says the "Guidelines supplement the provisions of the GIPA Act. Agencies must have regard to them in accordance with section 15(b) of the GIPA Act." However s 15 (b) applies to a "determination as to whether there is an overriding public interest against disclosure of government information", not to matters concerning the exercise by an agency of other functions such as a decision on reduction of charges.

Information Commissioner O'Donnell is a persuasive woman, and suasion can be a powerful tool in such hands. But on my reading she may not have anything else in the toolkit if push comes to shove on agency practice in applying s 66. A decision to refuse to reduce a processing charge is reviewable but the name of the game should be to get this uniformly and consistently right across the public sector first time. Commissioner guidelines should have more force, more than the "must have regard to" formula.

(On a broader front the NSW Commissioner should have powers that have more grunt than at present in a number of other respects- for example to impose requirements regarding agency compliance with the act's publication provisions ( s 22 stops short of this) and determinative powers to decide review applications by requiring disclosure of information where this is found not contrary to the public interest (s 92 powers are limited to making a recommendation))

Information applied for is of special benefit to the public generally
A decision that an application is for information of "special benefit to the public generally" requires consideration of issues that differ from deciding where the public interest lies,  Terms such as this feature mainly in trade practices and charity law although something close,"benefit to the general public" is a consideration in Federal FOI matters concerning award of costs in AAT cases.

"Special benefit to the public generally" would appear to mean of particular value or advantage to the community generally (perhaps to a section or group), as distinct from information merely of value or advantage to an individual.

The Guideline states[3.2.2(ii)]:
There is no prescriptive definition of “special benefit to the public generally”. However, as a general guide, information that better informs the public about government or concerns a publicly significant issue would be of special benefit or special interest to the public generally. For example, if the information would inform public debate about an issue, increase public understanding about government functions, or contribute to the public’s understanding of an issue of public significance (such as the environment, health, safety, civil liberties, social welfare, or public funds), then this would have a special benefit. Information that could be viewed as satisfying public curiosity would not ordinarily satisfy the special benefit ground.
In my view an applicant making a request for this type of information is applying for information of special benefit to the public generally, by using the act to seek access to information that would advance community interests regardless of whether access is granted, and should be entitled as a matter of course to the 50% reduction in charges. Some other broad categories could be added to the list drawing from s 12, for example where the application seeks information about the operations of agencies and, in particular, their policies and practices for dealing with members of the public, or relates to possible misconduct or negligent, improper or unlawful conduct by an agency or officer.

The making of the application, not the effect of disclosure triggers s 66. However the Guideline doesn't make this point and elsewhere refers to the effect of disclosure, for example (emphasis added):

3.2.2 iii) The issue the decision-maker must consider is whether the release of the information would result in a special benefit to the public, rather than whether reducing the charges would result in a special benefit.

3.2.3 For the purpose of a reduction in processing charges under section 66, the benefit as a result of the release of the information should flow to members of the public and not just to the applicant.

4.1 Below are some examples of circumstances where releasing the information may have a special benefit to the public generally

I hope agencies don't take these references to mean that a decision on the reduction of charges requires consideration of the effect of disclosure. An applicant who gets a knockback on the discount, based on a finding by an agency expressed in terms that benefit to the public generally would not result from disclosure or release of information might consider a challenge on the basis that such a test is inconsistent with s 66.

Fees and charges generally
The charging regime in all jurisdictions other than Tasmania involves inordinate use of public resources requiring each agency to keep track of time on each application, calculate what is chargeable, issue estimates and ask for deposits, request and process payments, deal with requests for rebate or reduction, manage responses to review requests on the amount of a charge, and to follow up instances of non payment. Not to mention in some cases trying to follow complex legalistic guidance on aspects of the charge regime.  All for relatively small overall return that is probably far outweighed by the administrative costs involved.

Cost is also still a significant barrier to use of legislation that in reform jurisdictions at least has the public purpose of increasing public participation in government activity, or a similar worthy object.

Where the law allows, or there is room for policy to dictate, it would be cost effective for an agency to waive charges for applications for all or at least some types of requests, although not for the completely frivolous.

In the longer term charge systems cry out for a cost benefit study of the administrative costs involved against what is collected, and other pluses and minuses of shifting to the Tasmanian model in light of experience there. I hear, contrary to what some concerned about a flood of applications if charges barriers were removed might expect, that there has been a fall off in requests there since the new act and abolition of charges took effect in July last year.

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