EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 269

 

Issued by the authority of the Minister for Privacy and Freedom of Information

 

Freedom of Information Act 1982

 

Freedom of Information (Fees and Charges) Amendment Regulations 2010 (No. 1)

 

 

The Freedom of Information Act 1982 (the Act) gives members of the public rights of access to official documents of the Australian Government and of its agencies.

 

Subsection 94(1) of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act and, in particular, making provision for or relating to the making of charges of amounts or at rates in respect of requests for access to documents or the provision of access to documents in accordance with the Act, including requiring deposits.

 

Subsection 94(2) of the Act provides that without limiting the generality of subsection 94(1), regulations under that subsection:

(a) shall not vary the rate of charge according to whether a document is a document of a particular agency or class of agency (an amendment to the Act commencing on 1 November 2010 will omit a restriction related to whether an applicant is included in a class of applicants);

(b) shall provide for a charge for time spent in undertaking search or retrieval of a document, or in making a decision on a request for access, to be calculated at a single hourly rate, regardless of the classification of the officer who undertakes the work; and

(c) may provide for a charge for direct costs in making an officer available to supervise the inspection by a person of a document.

 

The Freedom of Information (Fees and Charges) Regulations (the Principal Regulations) prescribe application fees and processing charges in connection with requests for access made under the Act.

 

The purpose of the Regulations is to amend the Principal Regulations so that no application fees are payable and to vary the circumstances when some charges are payable. The amendments serve to reduce the cost of making requests for access under the Act.

 

The Regulations have the effect that:

·       no application fee is payable for an FOI request or application for internal review;

·       an applicant who seeks access to their own personal information does not pay any charges;

·       for all other applications the first five hours of decision-making time is free of charge; and

·       any charges are not be payable where an agency or Minister fails to notify a decision within a period prescribed in the Act (including a permitted extension period).

 

The amendments arise from the Government’s reforms to the Act announced as part of its 2007 election policies. The principal objects of the reforms are to promote a pro-disclosure culture across the Government and to build a stronger foundation for more openness in government. Legislation to implement those reforms received Royal Assent on 31 May 2010 and will substantially commence on 1 November 2010 (Freedom of Information Amendment (Reform) Act 2010 and Australian Information Commissioner Act 2010).

 

Proposals to amend the fees and charges regime were initially announced in conjunction with publication of exposure draft bills in March 2009 and exposure draft regulations were subsequently released for public comment on 27 November 2009. The Regulations implement the fees and charges proposals that were the subject of consultation, other than a proposal in the exposure draft regulations to give journalists and not for profit organisations the first five hours of decision making time free and other applicants the first hour of decision making time free. The Regulations instead make the first five hours of decision making time free for all applicants, with no distinction for journalists and not for profit organisations.

 

In its report on the Freedom of Information Amendment (Reform) Bill 2009 and the Australian Information Commissioner Bill 2009, the Senate Finance and Public Administration Legislation Committee recommended that the government give consideration to issues raised with respect to fees and charges in the inquiry and, in particular, to the feasibility of removing processing charges, while retaining application fees, in the context of drafting regulations (recommendation 3). The Government will ask the Australian Information Commissioner to undertake a comprehensive review of FOI charges and to report to the Government within 12 months of the Commissioner’s appointment. The Australian Information Commissioner will be able to consider the suggestions on fees and charges raised during the inquiry and by the Committee.

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 November 2010.

 

 

 

 

 

ATTACHMENT

 

Details of the Freedom of Information (Fees and Charges) Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Freedom of Information (Fees and Charges) Amendment Regulations 2010 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 November 2010. This is the same time that the Freedom of Information Amendment (Reform) Act 2010 substantially commences.

 

Regulation 3 – Amendment of Freedom of Information (Fees and Charges) Regulations

 

This regulation provides that the Freedom of Information (Fees and Charges) Regulations (the Principal Regulations) are amended as set out in the Schedule.

 

Regulation 4 – Application

 

Regulation 4 has the effect that the amendments in the Schedule applies to FOI requests for access that are received after 31 October 2010.

 

Schedule 1 – Amendments

 

Item [1] – regulation 1

This item changes the name of the Principal Regulations to the Freedom of Information (Charges) Regulations 1982. The reference to ‘fees’ is omitted as the Regulations remove application fees.

 

Item [2] – subregulation 3(1)

Item 2 is consequential to the amendment at item 4 to remove application fees for an FOI access request and an application for internal review.

 

Item [3] – subregulation 3(3)

Existing subregulation 3(3) has the effect that an FOI applicant who is not an Australian citizen does not obtain the benefit of a cap on charges when seeking access to their own personal information. Item 3 of the Regulations removes that limitation, and is related to the amendment at item 4 to make a request for access to an individual’s own personal information free of charge.

 

Item [4] – regulation 5

This item replaces existing regulation 5 with a new regulation.

 

The existing requirement to pay an application fee of $30 for an access request and a fee of $40 for an internal review application is removed. The Freedom of Information Amendment (Reform) Act 2010 makes related amendments to repeal provisions in the Act dealing with application fees.

 

Subregulation 5(1) has the effect that no charge applies where an applicant is seeking access to their own personal information.

 

Subregulation 5(2) has the effect that no charge applies if an applicant does not receive notice of a decision on their request within 30 days (the period mentioned in paragraph 15(5)(b) of the Act) and that period has not been extended as permitted in the following circumstances:

·        with the agreement of the applicant (in accordance with section 15AA),

·        where certain third party consultation is necessary (in accordance with subsections 15(6) and (8)), or

·        where the Australian Information Commissioner extends the decision making period upon being satisfied a further period is justified to deal with a complex or voluminous request (in accordance with subsection 15AB(2)).

 

If the period for notifying a decision has been extended in accordance with one of the provisions mentioned above, but the decision has not been notified within the extended period, subregulation 5(3) has the effect that no charges will apply in respect of the access request.

 

Item [5] – regulation 6

This item omits regulation 6 of the Principal Regulations, and is related to the amendment at item 4 to make a request for access to an individual’s own personal information free of charge. Under existing regulation 6, except where access has been given within 3 months of making a further FOI request, no charges or fees are payable if the applicant seeks access to documents relating to a claim for, or decision relating to, the payment to the applicant of an income support benefit. Under the changes, all FOI applicants are able to apply for access to their own personal information free of charge (or fees) regardless of the nature of that information.

 

Item [6] – paragraph 12(1)(a)

Item 6 is consequential and removes a reference to ‘regulation 6’ (to be omitted at item 5) and to ‘regulation 7’ (which does not exist).

 

Item [7] – regulation 14

This item replaces existing regulation 14 with a new regulation. Existing regulation 14 provides that a deposit, or part of a deposit, paid by an applicant shall not be refunded unless a decision has been made to remit whole or part of the charges. Regulation 14:

·       is re-drafted to align the terminology of when a deposit is able to be refunded with terminology in the Act (that is, when the agency or Minister has decided under section 29 to reduce or not impose a charge); and

·       extends the grounds for when a refund of a deposit is allowed to include the circumstance when a charge does not apply because of the operation of subregulations 5(2) and 5(3) (that is, when a decision is not notified within a prescribed time).

 

Item [8] – Schedule, Part 1, item 2

Charge item 2 in Part 1 of the Schedule to the Principal Regulations makes provision for a charge in respect of time spent on search and retrieval of a document at $15 per hour. That charge item is qualified if the document contains personal information about the applicant, in which case item 2A provides for search and retrieval time to be capped to a maximum charge of $30. As a consequence of the measure to make a request for access to an individual’s own personal information free of charge, charge item 2A is removed by item 9 below. Accordingly, item 8 makes a consequential amendment to remove the reference to charge item 2A from charge item 2.

 

Item [9] – Schedule, Part 1, item 2A

Existing item 2A in Part 1 of the Schedule to the Principal Regulations makes provision for a charge for time spent on search and retrieval where an applicant has requested access to their own personal information. Item 9 of the Regulations removes that charge item, and is related to the amendment at item 4 to make a request for access to an individual’s own personal information free of charge.

 

Item [10] – Schedule, Part 1, item 5, column 2

Existing item 5 in Part 1 of the Schedule to the Principal Regulations makes provision for a charge for time spent in making a decision except in relation to an application for internal review. Item 10 of the Regulations is a minor amendment to update references to the relevant provisions in the Act dealing with an application for internal review (which will change upon commencement of the Freedom of Information Amendment (Reform) Act 2010).

 

Item 11 – Schedule, Part 1, item 5, column 3

Existing item 5 in Part 1 of the Schedule to the Principal Regulations makes provision for a charge for time spent in making a decision on an access request at $20 per hour. The effect of item 11 is to make the first 5 hours of decision making time free (for all applicants) and to make a charge of $20 for each subsequent hour. Access to a person’s own personal information is free of all charges (refer to item 4, subregulation 5(1)).

 

Item [12] – Schedule, Part 1, item 6

Existing item 6 in Part 1 of the Schedule to the Principal Regulations makes provision for a charge for time spent in making a decision, where the request is for access to the applicant’s own personal information, at $20 per hour up to a maximum of $40. Item 12 of the Regulations removes that charge item, and is related to the amendment at item 4 to make a request for access to an individual’s own personal information free of charge.

 

Item [13] – Schedule, Part 2, item 8

Item 13 removes a reference to an ‘Information Access Office’ which is a concept that will be repealed by the Freedom of Information Amendment (Reform) Act 2010.