Agency FOI fees and charges submissions are revealing

Professor McMillan

Australian Information Commissioner Professor John McMillan has probably signed off his report on the review of Commonwealth Freedom of Information charges, due to be in the hands of Attorney General Roxon about now, so we await the result with interest.

As to inputs,  FOI Editor at The Australian Sean Parnell seems to have been alone in digging into the published submissions and writing about them. The headline to his report of 30 December, Freedom of Information fees to soar if bureaucrats get their way, captured the essence of his summary.(Update: a more detailed report by Parnell on the submissions and FOI generally was published on 11 February-Counting the cost on new FoI)

Generally applications for non-personal information are up since application fees were abolished and other minor changes made to the charges regime in 2010.

I can understand that some applicants, and some applications, can be trying to say the least for those at the other end. So those agencies with more than their quota may be justified in complaining about a lack of resources to deal with the load, and about difficulties with aggrieved-for-whatever reason applicants who keeps going over and over the same ground. Agencies also clearly don't like the loophole exploited by some applicants in splitting requests to take advantage of the five hours free decision making time for each, the increased use of FOI as a cheaper alternative to discovery in legal proceedings, and free resort to OAIC review either.

The submissions reveal that some agencies are pretty dark about what has happened in the first year of the new charge arrangements, coinciding with broader changes to the law. Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them.

Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)

The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.

The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

Without repeating too much of Parnell's angle, or attempting a comprehensive summary, some observations...
 Submissions
Seventeen of the 22 submissions received were from government agencies with the Public Interest Advocacy Center, Greenpeace, National Welfare Rights Network and Megan Carter. rounding out the numbers. Other frequent users, interest groups, academics and lawyers didn't submit-at least for publication.

Media sit it out
Media organisations, for all their huffing and puffing on the subject, didn't make submissions except  the newcomer, The Global Mail, launched on-line this week, who made a submission on impediments to data journalism.

If I had the time..
Mea culpa, I didn't get a submission together either, but did attend with a handful of others-not a journalist or a media type in sight there either- the Sydney consultation on 24 November led by Professor McMillan, and had a chance there to throw in a few suggestions mainly about the related issue of costs. In brief, the need to have a better handle on the administrative cost to taxpayers of agencies keeping track of time and managing the existing complex array of charges, and whether this is justified in light of the return or other considerations; the scope for simplification of the access to information process, including costs and charges, through offering options such as a free service for straightforward information requests, and a graduated standard fee process for access to records and copies of material; the cost/ benefit of reimposing an application fee and abolishing charges, following the Tasmanian lead; scope to reduce cost through more pro-active disclosure; how to promote efficiencies in processing including through more and better the use of technology; and how poor/overly defensive decision making that results in high cost review applications might be improved.

Gripes
Public servants are justifiably peeved at the lack of resources for dealing with FOI and related information access issues. And with smarty pants applicants who make multiple requests, splitting them to take advantage of the five hours free decision making time. Climate Change and Energy Efficiency tell of an applicant who submitted over 700 separate applications in less than five months to take advantage of this loophole. Health and Ageing had an applicant who made 34 requests for similar documents including 22 on one day. Foreign Affairs and Trade and others report use of the tactic as well. The bureaucratic response is to make more rules.

But it's the use of the act more broadly that appears to be a prime source of irritation, particularly in the light of the fact that the going rates means costs far exceed returns. More "user pays" is seen as the answer to a myriad of problems.

Treasury and others like price signals:

The objects of the FOI Act state that Government information is a national resource. Reforms aim to increase public participation in Government processes by increasing rights of access. The requirement to publish most documents released under FOI on an agency’s website emphasises that the information is intended to benefit the Australian public as a whole. However, the individual applicant makes a decision on the scope of a FOI request. This is an individual’s decision about how public money is spent and what information should potentially be in the public domain. In our view, it is appropriate that the individual applicant bear some responsibility for this through payment of a charge. While it may be desirable that the amount of the charge recover a greater proportion of the cost of responding to a request, the most important principle is that the applicant should make a non-negligible contribution. This would suggest indexation of charges or periodic increases to ensure that charges do not become too low to provide the appropriate signal to applicants.

(No mention of government information freely accessible as a public good.)

Charges according to a formula
If you are unfamiliar with how FOI charges are currently calculated, the CSIRO submission provides details of the calculator developed by the Australian Government Solicitor and used by most agencies.
  
Users who know what they are doing are a pain 
Health and Ageing, the only agency to submit in the name of the big boss, Secretary Jane Halton, is hopping mad that the tobacco industry, challenging the government over plain packaging etc, is the source of a growing volume of FOI work, typically large requests involving "many hours of search and retrieval time, each of which has incurred (a) financial burden to the Department .. and.. diverted senior policy staff from performing their regular duties" on core business. People in DOHA have had to down tools from working to improve the health system, or aged care arrangements. "That diversion of resources and cross subsidisation is not in the public interest."

But it's not just the tobacco industry:

Applicants such as journalists, members of parliament, law firms and lobbyists have become expert users of the FOI Act. DoHA submits that a "one-size-fits-all" categorisation in which these applicants are lumped together with individuals who seek only access to their own government-held information, and inquirers such as students or citizens with particular interests is not a satisfactory basis for an appropriate charging regime. DoHA recommends that consideration be given to different categories of FOI applicants (e.g.media corporations, law firms, MPs) being charged according to guidelines designed for each category of applicant...

The ACCC says most FOI requests

"are from sophisticated and well resourced applicants and are made for essentially commercial reasons.. Applicants often seek material provided by third parties to the ACCC on a confidential basis, to further the applicant's own interests or as a strategic means of seeking to divert ACCC resources from its core enforcement regulatory functions.... Of particular concern to the ACCC is the increasing use of FOI requests as a strategic litigation tool.... which has the effects of undermining established court processes, and diverting agency resources from the litigation at hand."

DOHA suggests a user pays regime that is progressive - "those that can afford to pay should generally do so, and those that are gaining a commercial benefit should contribute to the cost accordingly.."

DFAT targets the"information rich"
Foreign Affairs and Trade characterises those asking for information other than personal information about themselves as almost exclusively applicants "who could be described as “information rich” – those for whom there are special channels of access to unpublished Government information in place." (No elaboration on these privileged information accessers and the special channels available to them.)

DFAT is also concerned that pesky foreigners get a free ride. An applicant at an overseas university, with no financial or personal connection to Australia, put in a large request comparable to others it had processed, for a range of twenty year old documents, with a view to writing a course essay.

"No charges were levied, as the applicant put forward a compelling argument of financial hardship. However, even if he had been charged the full amount, the charges would have been in the order of $3000. Processing his request has cost the Government approximately $15000."

Brake on number of applications and number of documents
Climate Change and Energy Efficiency wants to see some limitations placed on the number of applications that can be submitted at one time, and the number of documents requested in any application.

NBN Co, only partly covered by the act in the last year, says it has more important things to do and a cap on processing hours would be handy:

Mandated with constructing and rolling out Australia’s national broadband network, NBN Co has an obligation to ensure that it operates efficiently and according to sound business practices. In addition to building vital infrastructure for the nation, NBN Co is required to provide a commercial rate of return for its shareholders – our nominated Ministers, the Commonwealth Government and, more broadly, the Australian taxpayer. Good business practice dictates that NBN Co should put a value on the time spent by its staff and charge accordingly for its services. To do otherwise would tend to undermine NBN Co’s obligations as a commercial entity.
.... FOI processing and related tasks can cause substantial loss of productivity and tie up agency resources. In that context, NBN Co would recommend that the OAIC place specific limits or “caps” on the amount of processing hours which may be dedicated to a given application or a substantially similar subject matter.

Hefty agency costs to search own records
Climate Change and Energy Efficiency incurs significant direct search cost as a result of an own goal in contracting out. How many similar arrangements contribute to costs?:

The Department frequently receives requests that include emails stored electronically.  The Department has outsourced its IT services, and incurs considerable expense when it requests the IT provider to conduct electronic searches to identify documents that may be within scope of an FOI request.  The fees the Department has incurred range from a few hundred to a couple of thousand dollars for each search.  Limiting the quantity of documents that can be sought at one time would limit the quantity of emails that would need to be searched, retrieved and reviewed for possible release.  As this is a cost to the Department that cannot be recovered from the applicant, limiting this cost would alleviate some of the cost to the agency for processing requests.

"Free"applications encourage sloppy requests
IP Australia:

Most of the FOI requests received by IP Australia are for information about particular trade mark applications. These are generally reasonable well-focused requests made by parties with an interest in issues raised during registration of a particular trade mark. IP Australia has seen no significant increase in the number of these requests following the abolition of application fees. IP Australia received approximately 300 of these requests in the 12 months prior to abolition of the application fee and a similar number in the 12 months following abolition of the fee. IP Australia does, however, receive a small number of requests relating to other matters, for example policy matters and other business of the agency. Since abolition of the application fee IP Australia has seen an increased number of these requests. Prior to abolition of the application fee IP Australia received 5 and 10 of these requests per year, with the majority of requests being reasonable and well focused. In the 12 months following abolition of the fee IP Australia has received approximately 20 of these requests, with more than half of the requests being speculative and poorly focused, or repeated requests for information that IP Australia has already provided, or has informed the requestor that IP Australia does not have. These requests are often complex and time consuming to fulfil and can consume considerable resources.

And a dash to external review
 CSIRO:

A nominal fee for internal review and IC review would by no means cover the real costs of engaging a separate decision maker to consider the FOI application and documents afresh under the internal review process (or the cost of an IC review). However, a fee would act as an incentive for applicants to seriously consider the reasonableness of the initial decision, including reading and assessing any released material. 

For example, in recent months CSIRO handed down a FOI decision to an applicant via email and within two minutes the applicant responded by lodging an application for internal review. The decision was very complex and challenging, releasing documents in part, and exempting parts pursuant to the relevant sections of the FOI Act. It was clearly evident that the applicant had not attempted to consider the decision in full before applying for internal review. The introduction of a nominal fee would provide an incentive for applicants to seriously consider the decision handed down to them by agencies before seeking an internal review.

The non-government submissions
Mostly put another view:
PIAC submits that the idea of recovering costs from FOI users is at odds with the idea that FOI legislation is about the fundamental right of individuals to access information, and expresses concern that the existing costs in some cases may deter reasonable requests, and not just potentially vexatious ones.
Greenpeace favours a $35 application fee and no charges a la Tasmania.
Megan Carter of Information Consultants suggests there should be some administrative defences available to agencies to deal with very large volumes of material, even for personal requests where client files in excess of 2000 pages are often sought by applicants involved in long running disputes.

"The poor state of relations between the client and the agency reduce(s) the likelihood of reaching negotiated agreements as to reductions in scope or extensions of time frame to enable the agency to meet its responsibilities under the Act.. While the reformed Federal Act now includes a provision to refuse to deal with repeat applications, agencies have not been empowered to refuse “vexatious” requests, a power reserved to the OAIC. If agencies had this power, they could then use it to minimise the number and frequency of extraordinarily or excessively large requests. Such refusals would, of course, be subject to review in the normal manner...Where resources are inadequate, it seems needlessly harsh for an agency to have to refund all charges when statutory deadlines are not met. Certain categories of applicants (such as frequent users) now have an incentive not to cooperate with agencies, either in reducing the scope of a request or in agreeing to extensions of time, wherever such lack of cooperation is likely to gain them their requested information for free.The underlying policy objective for the refund of charges for overdue requests, that is, to act as an incentive to agencies for prompt processing and compliance with statutory timeframes, could still be met by the requirement to refund a proportion of the charges (e.g. 25%), which would alleviate the problem of discouraging users from negotiating the scope and timeframe.

I think the vexatious provision in the act could do with another look, but the power to declare an applicant vexatious shoudn't rest with an agency. One person's vexatious is another's legitimate concern. Leaving it to the independent external reviewer is a safer course.

The whole shebang is now over to Professor McMillan and the Attorney General with parliament potentially having a say if changes to the act and regulations are on.