Chapter 10: Processing requests

 

Charging

Charging policy and practice is an area where we conclude that a fresh rethink of policy settings would be highly desirable, in light of a range of developments since the official information legislation was last reviewed.

The mix of public and private interests involved in the provision of official information makes charging policy a complex policy equation. A review in the United Kingdom described the benefits of freedom of information as having three elements: the private benefit to an individual of the information they receive; the public benefit of that information being made available; and the aggregate benefits that derive from a more open and transparent decision-making process.395 As the Law Commission identified in 1997, while there are inherent costs in disseminating public information, two of the benefits are improved quality of policy and law making by means of increased participation and the meeting of accountability expectations.396

Research has suggested further study is needed into how much freedom of information legislation is used by powerful and organised interests or by “private interest” as opposed to “public interest” groups, because the size of these categories could have significant implications for policy on fees and charges:397

The rhetoric of FOI is predicated on the man in the street making requests of wider public interest to his fellow citizens. If in reality FOI is used by a lot of organisations making private interest requests, it is harder to justify a fees regime under which almost all FOI requests are made free of charge. Some FOI requesters are certainly well resourced … But we do not know whether they are a small minority, or whether many requesters are well resourced. This gap in our knowledge hampers any sensible debate about revising the current fees regime.

Current practice is highly variable and there is uncertainty about when it is appropriate to apply charges, given the overarching purpose of the legislation to make official information more available to citizens. It can be difficult to apply charges in a way that does not hinder this aim.

The role of charging in the official information process has never been a full cost-recovery exercise.398 Where charges are applied they represent a partial recovery of some aspects of agency time and other costs incurred in responding to requests. The objective of the legislation to increase the availability of official information, the broad agency discretion to waive or reduce charges, and the limits on which activities may attract a charge means that, rather than being a primarily a cost recovery mechanism, charging largely operates as a defence mechanism for agencies in relation to outlier requests that consume a great deal of agency time and resource.

In a recent review, the Australian Information Commissioner found that while full cost-recovery would be incompatible with the objects of the Freedom of Information Act, it is appropriate that requesters can be required in some instances to contribute to the substantial cost to government of meeting individual requests, and that charges play a role in balancing demand, by focussing attention on the scope of requests and regulating those that are complex or voluminous and burdensome to process.399

While there is a lack of New Zealand statistics as to the overall cost of the official information regime, there is substantial anecdotal evidence from agencies that they are required to devote significant resource to this activity.400 Attempts have been made in other jurisdictions to capture statistics as to cost, which also provide indicative evidence in the absence of New Zealand statistics.401

An investigation into the cost of freedom of information by the Constitution Unit of University College London compiled statistics from a number of countries:402

Despite the differences in methodologies, a common finding in each report was the financial impact of administering a small number of disproportionately expensive requests. For examples in the U.K., although only 5% of requests cost more than £1,000 of officials’ time, they tended to take 7 times longer to process than average requests and accounted for 45% of total costs.

As resourcing pressures mount, there are questions about whether charging should be used more consistently as a lever to control more extreme requester behaviour, and whether the costs of a wider range of official information related tasks should be chargeable.

Assessing whether a stronger charging mechanism is needed requires a survey of the other “defence” mechanisms available to agencies, such as the “substantial collation and research” refusal ground. In chapter 9 we recommend defining “substantial” to mean that the work involved would substantially and unreasonably divert resources from the agency’s other operations.403 We also recommend stronger provisions to assist agencies to deal with “vexatious” requests that impose a significant burden.404

Another consideration is the potential benefit and opportunities offered by the current approach. Setting limits on what agencies can charge for may provide an opportunity to influence agency behaviour, by incentivising improvements in efficiency. For example, agencies may be incentivised to invest in training and technology and management systems to control their workload. This approach may also incentivise proactive release of official information, possibly at lower cost.

The trend towards proactive publication and release of official information by agencies (discussed in chapter 12) raises issues about the role of charging in that context, and the fairness of charging a requester for providing official information which is subsequently or simultaneously released to the wider public for no charge.

Broader government information policy has created certain presumptions about charging: the New Zealand Data and Information Management Principles (NZDIMP) discourage it and create an expectation that the use and re-use of government held data and information will be free. If a charge is applied, it should be transparent, consistent, reasonable, and the same cost to all requesters. NZGOAL also discourages charging for use and re-use, while listing matters that should be taken into account before applying a charge.405

There is a need for the interplay between these more recent principles and the charging guidelines to be clarified and rationalised. This exercise is broader than reviewing charging policy under the official information legislation alone; it must include these related areas of information policy, so that a cohesive, consistent and principled charging framework is created and applied.

This exercise also needs to include appropriate economic and socio-political analysis. A New South Wales review found it can be difficult to find a balance between economic and socio-political objectives in this area:406

Low charges would result in more extensive use of FOI [freedom of information] by the community, but the cost to the general taxpayer would be high.

Higher charges would mean that FOI applicants would pay more of the costs associated with FOI, but would also have the effect of depressing the use of FOI.

As this task is broader than we can undertake as part of the specific review of the official information legislation, we make no firm recommendations about the design of a new charging framework. Instead we recommend that further work be done to develop a suitable framework. Ideally this work would be carried out by the oversight office we discuss in chapter 13. We outline here the responses we received to questions we asked in the issues paper about charging and our research findings in this area.

Current framework and issues

The OIA and LGOIMA simply provide that agencies may charge requesters for supplying official information.407 Any charge is to be reasonable and the agency may consider the cost of the labour and materials involved, as well as any costs incurred in making information available on an urgent basis.408 Charges are reviewable by the Ombudsmen.409 The OIA authorises the making of regulations to prescribe reasonable charges,410 but no regulations have ever been made. Instead the Ministry of Justice has produced charging guidelines.411 There is a widespread view that these guidelines are less useful than they should be in the current environment and in any case they do not extend to local authorities.

When the LGOIMA was enacted, it anticipated the promulgation of regulations to set prescribed charges.412 However, as no regulations have ever been made, the fall-back position is that charges have to be reasonable, having regard to the cost of the labour and materials involved in making the information available and to any costs incurred pursuant to meeting an urgent request.413 LGOIMA agencies report to us that they tend to use the Ministry of Justice guidelines in the absence of any other guidance.

Nicola White’s research identified widespread perceptions among requesters that:414

(a)charging powers are used in an ad hoc fashion, with at times little apparent logic to decisions over who is charged, when or why;

(b)charging powers are regularly used to “burn people off” rather than genuinely to manage the bounds of an OIA request, and are often used with a political motive;

(c)charges that are levied are often unreasonable or hard to understand, and are increasingly hard to justify when information can be provided swiftly and easily through electronic communication.

She also found that agencies:415

(a)are sometimes uncertain of their ground in regard to charging;416

(b)will sometimes try to recognise the public interest by not charging non-governmental organisations or other requesters with an element of public interest to their work.

From our consultation and research we have also noted a lack of consistency in charging practices. Uncertainty about charging was confirmed in submissions to the issues paper. One submitter felt that charging is one of the most troublesome areas of the legislation; another noted that the arbitrary nature of current charging policy means that requesters are not clear whether they have to pay.

Many OIA agencies do not generally impose charges that could be perceived as limiting people’s access to information. The charging guidelines include grounds for the remission of charges such as hardship and the public interest, or where remission is otherwise in the interests of the agency concerned. On the other hand, LGOIMA agencies tend to make use of the charging provision on a much more regular basis. We heard that one local council is considering changing its current charging policy to charge all costs associated with official information requests, as well as applying a minimum fee.

Even where agencies do not generally impose charges, they find the discretion to do so a useful tool to help control large and repeat requests, in addition to the other tools at their disposal in such cases. It is reported that the largest number of unmanageable requests come from political party research units which are largely exempt from the imposition of charges.417

Responses to our initial survey indicated that many central agencies do not charge because the suggested levels are too low to cover the administrative cost, particularly as they do not cover the cost of assessing the material.

It is clear that charging has a role to play in creating a workable balance in the system, and could be used to adjust the level of cost recovery. However there is also a question of balance: any charging regime must not run counter to the freedom of information objectives of accessibility, open government, encouraging citizen participation and the exercise of democratic rights. The balance must be got right between the public duty of the agency to supply information and the private benefit conferred on the requester by the receipt of it.

We are mindful of the reportedly high cost to agencies of processing official information requests. While responding to official information requests is now generally treated as “core business”, the reality is that most officials dealing with official information requests have, in addition, full workloads, against which the official information requests must be prioritised.418  One of the major costs for agencies is the diversion of staff away from their day to day workload to manage official information requests. We discuss the sizeable burden that the legislation places on agencies in administrative and resourcing terms in chapter 9.

Reform of charging framework

Some issues

It is clear that the current framework is in need of an overhaul and that agencies are in need of guidance to readily identify the types of request where charging should be used and how the charging framework should be applied. The guiding principle of the framework is one of reasonableness but this can be difficult for agencies to determine in different circumstances. The discretion to waive or reduce charges in the public interest is a broad one that can pose consistency issues for agencies who either tend not to charge by default, or conversely may tend to charge as a matter of course.419

The Danks Committee recognised that any system of charging will involve some arbitrariness and will require levels to be monitored, guidelines to be issued and practice to be modified in light of experience and in pursuit of consistency.420 It was envisaged that this would be a role for the information unit of the State Services Commission.421

One question is what form a revised charging framework should take. For example, the framework is currently contained in guidelines. An alternative would be to enact the framework as regulations made under the official information legislation.422 The legislation already anticipates the making of regulations to set charges although the power has never been used. The advantages of enacting the framework as regulations are that it would be a transparent public process that would be subject to certain safeguards,423 and would create a uniform system of rules applicable to all.

A related issue is whether to create a comprehensive framework that covers both OIA and LGOIMA agencies. This may involve two sets of regulations under the OIA and LGOIMA respectively, depending on whether the official information legislation remains in two separate Acts or is combined, as discussed in chapter 16.

Consideration will need to be given to the relationship between the recommended duty on agencies to proactively release information, discussed in chapter 12, and the power to charge requesters. If agencies fail to proactively release information as part of any required release strategy, which means that citizens must request it, this may reduce the likelihood that charging for providing such information could be considered to be “reasonable.”

One of the difficult issues is assessing which aspects of the process should attract a charge (and in which circumstances), and which aspects should not. Currently, the guidelines specify certain kinds of activity where charges may apply (based on a maximum hourly rate), and exclude other activities. Time spent searching for relevant information is included, except where the information is held in the wrong place. But time-consuming and complicated aspects of the process such as consultation, deliberations over withholding grounds and legal advice are excluded. We think that the various inclusions and exclusions should be examined afresh in terms of the incentive each inclusion or exclusion puts on both agency and requester behaviour.

The impact of our recommendations in this report should also be assessed: the clarification of difficult withholding grounds and additional guidance and examples for agencies may assist to reduce or streamline the time agencies spend on decision-making, which in turn may reduce the burden on agency resources.

Some options

An analysis of the approaches to charging and fees in other jurisdictions shows that there is a range of possible models to consider in redesigning a charging framework.424

Flat fee model

The flat fee model is relatively simple and may be easier for agencies to administer than time-based systems. There is also a clear correlation between what a requester is charged and what they receive. For example the Queensland FOI Independent Review Panel recommended a flat-fee model (set out in regulations based on the recommendations of the Information Commissioner).425  Under this model a specified charge would apply based on the number of pages released, with the first 100 pages being provided at no charge. No charge would apply to any page with redacted information. And no charges would apply to the searching for and retrieval of information or for decision-making by agencies.

However, this model was not adopted in Queensland’s new Right to Information legislation, which instead provides for time-based charging; an access charge to recover the actual costs of providing access to the information requested in any particular form; and an application fee.426

Application fee

The application fee model imposes a fee at the time of making a request. All the Australian states impose an application fee427 (as well as other potential charges) except the Australian Capital Territory, but application fees have now been removed at Commonwealth level.428 In Tasmania, a $35.00 application fee is the only charge applied. Such a model may reduce frivolous or ill thought-through requests but this may not be suitable in the New Zealand context, where there is no line drawn between formal or informal requests. It would be inappropriate to suggest that a requester should have to pay for a request that may only take an official a very short time to respond to.

Categories approach

A further option would be to develop a model based on categories. For example, under a three-categories model:

(a)category one (requests that take a relatively short time to respond to) might attract no charge;

(b)category two might cover requests estimated to involve a specified number of hours of processing time (say between 20 and 40 hours) and would attract a flat charge in the event of release;

(c)category three might cover requests estimated to involve more than the highest specified number of hours of processing time (40 hours in our example) which could be charged at a flat hourly rate for the full processing time, in the event of release.

The model could also include various exceptions based on categories of requester (on public interest grounds). For example, the charging categories might not apply to researcher access. A variation would be to set fees based on a larger number of categories than just three, for example a charge rising by a specified dollar sum for every 10 hours of time beyond the first 10 hours.

The Australian Information Commissioner has recommended that no charge apply to the first five hours of processing time (which includes search, retrieval, decision-making, redaction and electronic processing). The charge for processing requests that take five to ten hours should be $50.00 per hour, and the cost for each hour after the first 10 hours should be $30.00 per hour, up to a ceiling of 40 hours. Charges would be indexed to the Consumer Price Index and adjusted every two years to match the change in the CPI over that period, rounded to the nearest multiple of $5.00.429

 
Cost limits

The model used in the United Kingdom is to apply a cost limit of £600.00 for central government departments and £450.00 for other public authorities.430 If the public authority estimates that complying with a request would exceed the cost limit (estimated at a rate of £25.00 per staff hour, but only for some FOI activities), the agency is released from having to meet the request. There have been calls for the hourly rate to be increased and for a wider range of FOI activities to be included for purposes of the cost limit, such as reading, consideration and consultation time. These changes have not been accepted to date, although the Freedom of Information Act 2000 is currently under review.431

In Australia, the Information Commissioner has recommended a ceiling on processing time so that an agency would not be required to fulfil a request estimated to take more than 40 hours to process.432 Concerns have been expressed that this may limit investigations by the media, community organisations and politicians into complex policy and programmes.433

Public interest fee waivers or reductions

A common feature of charging regimes is for charges to be waived or reduced where it is in the public interest to do so. The provision of any official information can at one level be considered to be in the public interest, as it furthers the stated goal of making official information more freely available. What is not altogether clear is whether the public interest element in this context simply confers discretion on agencies as to the circumstances in which charging will apply, or whether a “special” public interest must be present before a charge may be waived or reduced. While agency discretion provides flexibility, it may be inconsistent, especially without further guidance.

The Ministry of Justice charging guidelines currently provide for charges to be modified or waived at the discretion of the agency receiving a request.434 The guidelines suggest that it would be appropriate to consider exercising this discretion where:

(a)the application of charges might cause hardship to the requester; or

(b)the remission or reduction of the charge might facilitate good relations with the public or otherwise assist the agency carry out its work; or

(c)the remission or reduction of the charge would be in the public interest, i.e. because it is likely to contribute significantly to public understanding of, or effective participation in, the operations or activities of the government, and the disclosure of the information is not primarily in the commercial interest of the requester.435

In Australia, the Freedom of Information Act contains a “lowest reasonable cost” objective which influences charging policy.436 Agencies must take into account whether charges would cause financial hardship to the requester, and whether release of the information is in the public interest.437

In New South Wales, agencies have the discretion to waive, reduce or refund application fees or processing charges in any case that the agency thinks is appropriate.438  Section 3 of the NSW Act records Parliament’s intention that discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Requesters can also seek a 50 per cent reduction in processing fees on the basis that the requested information is of special benefit to the public generally.439 A guidance checklist prompts agencies to ask the following questions:440

(a)Does the information relate to an issue of public debate?

(b)Does the information relate to an issue of public significance (for example, the environment, health, safety, civil liberties, social welfare, public funds, etc)?

(c)Does it interest or benefit the public in some other way? (for example by assisting public understanding about government functions)?

(d)Would release of the information likely result in further analysis or research?

(e)Would the information add to the public’s knowledge of the issues of public interest?

New South Wales agencies are required to reduce processing charges by 50 per cent if the requester provides evidence that they are a pensioner, full-time student or non-profit organisation.441 A requester can also apply for a 50 per cent reduction of the processing charge on the basis of financial hardship.442

Type of requester

Charging regimes sometimes make special provision for certain types of requester such as the media, Members of Parliament, non-government organisations, and academics.443 These types of requesters are seen as having strong public interest grounds for requesting government information and consequently charges may be reduced or waived. On the other hand, these users often make demanding information requests that create a large workload for agencies.

Some regimes distinguish between commercial and non-commercial requests. There is sometimes debate about the role of the media and whether media requests are always clearly in the public interest, given the commercial imperatives under which the media operate.

In the issues paper we asked for views about the application of the charging regime to requests from Members of Parliament.444 The Ministry of Justice charging guidelines suggest that Members of Parliament may be exempted from charges for official information provided for their own use; and that this discretion may be extended to cover political party parliamentary research units when the request has the endorsement of an MP.445 In practice, this guideline has developed into an expectation that agencies will not charge for requests made by political research units.

Nicola White’s interviews with Ministers and political advisers mentioned the unwritten trade-off that used to exist where requests from opposition research units were handled without charge, but all went through Ministers’ offices as a means of managing the politics without embroiling the bureaucracy. That system however no longer applies, as Ombudsmen do not support a convention of transferring opposition or media requests on certain issues to a Minister’s office.446

In its 1997 review, the Law Commission supported the practice of not charging MPs or staff of parliamentary research units and considered it important that it remain unchanged.447  We maintain the view that access to official information is an important tool for opposition parties to be able to scrutinise government policy, and that parliamentary research units should not usually be charged for reasonable requests. However, there is no reason why unreasonable political requests should be completely exempt. Voluminous and unrefined requests from parliamentary research units can cause a great deal of expenditure of resources. The charging mechanism should be available to agencies as a defence mechanism in appropriate cases, regardless of the source of the request.

The public interest waiver should provide the flexibility for appropriate charging of MPs and incentivise these requesters to ensure that requests have a sufficient public interest basis in order to qualify for a waiver of charges. For requests that do not fulfil the public interest criteria, there is no reason, with the move to bulk funding of parliamentary support, that political parties should not take costs into account when making OIA requests to public agencies.

Views of submitters

A number of suggestions were received from agencies in response to our survey. These included:

(a)clearer provisions in the legislation;

(b)standardised charging around staff time and resources;

(c)the use of upfront deposits where a request is chargeable;448

(d)mandatory charging for “fishing” requests;

(e)regulations to update the guidelines;

(f)software for assessing costs.

A number of agencies suggested that the discretion to charge requesters should be broadened to include aspects of the decision-making process, such as consultation and deliberation.

In submissions to the issues paper, 28 submitters (including strong support from the Ombudsmen) favoured a charging framework contained in regulations, which were seen as providing greater certainty and consistency. However, nine submitters opposed this option. Two departments felt that the Ministry of Justice charging guidelines are sufficient, although submitters favouring the status quo were a small minority. Other Ministries favoured clearer guidance about charging, or a fees framework established by the oversight office. Some of these submitters felt that establishing a charging framework by regulations may be overly restrictive or prescriptive and that agency discretion should be retained.

Submissions also showed a divergence as to which principles or presumptions should prevail in establishing a new charging framework. Some submitters favoured a presumption against charging with the discretion to charge in certain circumstances. Others supported the opposite: a presumption in favour of charging with the discretion not to in certain circumstances. One non-government organisation submitted that any charging that restricts reasonable public access should be avoided.

There was also a range of views as to the extent to which charges should be used to recover costs. Some submissions advocated for full cost recovery; the charging of commercial rates (at least for requests for commercially useful information); and the ability to charge for all activities involved in responding to requests, such as the assessment of withholding grounds and consultation. Other submitters were opposed to expanding charging policy along these lines and were concerned that charges should not be set at levels that would discourage requests.

A range of comments were made about possible models such as time-based charging, a flat fee model or a categories approach. One submitter supported the flat fee model on the basis that it is simple, transparent and administratively easier than other models, although another submitter noted that it would not take into account significant agency time taken to release a small amount of information. There was support for a categories approach based on size and complexity of the request and the nature of the requester; one submitter thought this made the most sense and would be the most flexible to apply. Another submitter suggested a hybrid approach, with a flat fee for requests taking no longer than four hours to respond to, and a categories framework for requests that take longer to deal with.

Some submitters supported further work to develop a preferred model being undertaken either by the Ombudsmen or the State Services Commission (in consultation with official information providers). The Ombudsmen thought that all three options warrant further investigation and the relative advantages and disadvantages assessed. Regardless of which model is adopted, the Ombudsmen thought that it should contain the following elements:

 

(a)Requesters should only be charged where information is released;

(b)The discretion to waive or remit charges based on financial hardship and the public interest should be retained, and possibly included in the official information legislation (as it is in the Australian Freedom of Information Act);449 and

(c)Requesters should not be charged where the information ought to have been proactively released to the general public, or where there is a right of access to the information.450

A range of views about whether the purpose of a request should be taken into account in setting charges was evident in submissions. The Ministry of Economic Development thought this should be a significant factor so that a public interest purpose would reduce the justification for charging. The contrary view of one regional council was that this could encourage requesters to mislead agencies about purpose and identity.

There was also a discrepancy in views as to whether a new charging framework should cover both OIA and LGOIMA agencies, or whether local government should be able to fix charges under its own cost structures.

On the question about whether the charging regime should apply equally to political party requests,451 submitters clearly supported equal treatment of requesters in terms of charging (26 in favour and two against), and no special treatment for requests from political parties. Charging is seen as a useful tool to manage requests that involve a significant burden; however several submissions (including that of the Ombudsmen) suggested that charges for MPs could be waived in appropriate cases under a public interest exemption.

Conclusion and objectives

Rather than acting primarily as a cost recovery mechanism, we view the discretion to impose charges as a necessary reserve power for agencies to control large requests and encourage the refinement of their scope. The charging framework is an important mechanism for keeping an appropriate balance in the official information process, between promoting the availability of official information; and managing the public sector burden of processing the small percentage of official information requests that disproportionately tie up agency resources.

 

Developing a revised charging framework should, in our view, be based on the following objectives:452

(a)charging does not act as a disincentive to legitimate requesters and so does not pose an obstacle to freedom of information objectives;

(b)charging acts as an incentive on requesters to tailor their requests so far as reasonably possible to reduce the administrative burden on agencies;453

(c)the charging regime provides an incentive on agencies to maintain efficient information handling practices so that requests can be dealt with as promptly and cost-effectively as possible;

(d)the charging regime incentivises (or does not dis-incentivise) best decision-making practices (such as sufficient consultation);

(e)the charging regime provides an incentive on agencies to release information proactively as appropriate;

(f)the charging regime is not unduly complex or time-consuming for agencies to apply and so does not increase the administrative burden of the official information legislation on agencies;

(g)charging can be consistently applied by agencies so that it is not a cause of perceived unfairness amongst requesters; and

(h)there is appropriate transparency as to agency charging practice.

A possible addition to this list is incentivising timely performance by agencies by linking the ability to charge with meeting the statutory response timeframes.454 However, one concern is whether this approach would have a negative impact by reducing the incentive for requesters to co-operate with agencies (in the hope that exceeding the time limit might result in remission of the charge).455

The review of charging policy should cover not only charging policy under the official information legislation, but also other government information policy including the release of datasets.456 This is necessary in our view to ensure that the new charging framework is comprehensive and consistent.

R71A review of charging policy based on the objectives listed at [10.202] should be undertaken in order to establish a charging framework that is cohesive, consistent and principled. The review should include charging policy under the official information legislation, the Declaration on Open and Transparent Government, the New Zealand Data and Information Management Principles and the New Zealand Government Open Access and Licensing framework, and any other relevant government information policy.

Frontier Economics Pty Ltd Independent Review of the Impact of the Freedom of Information Act (Report prepared for the Department of Constitutional Affairs, London, 2006) at 10.

Law Commission, above n 288, at [115]–[116].

Robert Hazell, Ben Worthy and Mark Glover The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (Palgrave Macmillan, Basingstoke, 2010) at 264.

See HM Treasury (UK) Managing Public Money (2007) at 41, citing information services such as freedom of information requests as an exception to full cost charging on public policy grounds.

Office of the Australian Information Commissioner Review of Charges under the Freedom of Information Act 1982 (2012) at 5.

See White, above n 291, at ch 14; and chapter 9 of this report.

See for example, Office of the Australian Information Commissioner Review of Charges Under the Freedom of Information Act 1982: Discussion Paper (2011), at Part 4; Anna Colquhoun “The Cost of Freedom of Information” (Constitution Unit, University College London, 2010); and Scottish Government Freedom of Information Costing Exercise 2009–2010: Final Report (November 2010).

Colquhoun at 3. The countries studied included the United Kingdom, Scotland, Ireland, Canada, Australia and the United States but did not include New Zealand.

Chapter 9, R39.

Chapter 9, R44.

State Services Commission, above n 378, at [55]–[57]. See chapter 12 of this report at [12.126]–[12.129].

FOI unit of NSW Premier’s Department, cited by the NSW Ombudsman Discussion Paper: Review of the Freedom of Information Act 1989 (September 2008) at 30.

OIA, s 15(1A); LGOIMA, s 13(1A).

OIA, s 15(2); LGOIMA, s 13(2).

OIA, s 28(1)(b); LGOIMA, s 28(1).

OIA, s 47(d).

Ministry of Justice Charging Guidelines for Official Information Act 1982 Requests (March 2002). The guidelines were first produced in 1992. The 2002 version is not very different from the 1992 version. For a summary of the changes, see Paul Roth Privacy Law and Practice (looseleaf ed, LexisNexis) at [PVA35.7]. See also The Treasury Guidelines for Setting Charges in the Public Sector (December 2002); and Office of the Controller and Auditor-General Charging Fees for Public Sector Goods and Services: Good Practice Guide (June 2008).

LGOIMA, s 2(1) definition of “prescribed amount,” and s 13(2).

Section 13(3).

White, above n 291, at 277. See also 134–139.

At 278.

At 139. One public servant noted that there was no developed understanding of how to approach charging across the government sector.

Ministry of Justice, above n 411, at [7.4].

Some agencies use contractors to deal with processing official information requests to free up permanent staff. Others report that contractors lack the institutional knowledge to properly assess the basis for release or withholding.

See further below at [10.181]–[10.185].

Committee on Official Information Towards Open Government: Supplementary Report (Government Printer, Wellington, 1981) at [4.57].

At [4.03]. See also chapter 13 of this report at [13.15].

See for example the Freedom of Information (Fees and Charges) Regulations 1982 (Cth).

See Legislation Advisory Committee Guidelines on Process and Content of Legislation (2001 ed and amendments) Appendix 5: Controls Over Regulations.

For an overview of charging practices in other jurisdictions, see Office of the Australian Information Commissioner, above n 401, at Part 5.

FOI Independent Review Panel The Right to Information: Reviewing Queensland’s Freedom of Information Act (June 2008) at 198–199.

Right to Information Act 2009 (Qld), Part 6; Right to Information Regulation 2009 (Qld), regs 5–6.

See for example Government Information (Public Access) Act 2009 (NSW), s 64.

There have been calls for application fees to be reinstated and increased: Sean Parnell “Counting the Cost of New FOI” The Australian (11 February 2011). For a summary of the charging practices in the Australian states, see Office of the Australian Information Commissioner, above n 401, at Part 5.

Office of the Australian Information Commissioner, above n 399, at 6–7 (executive summary).

Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (UK).

Ministry of Justice Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Freedom of Information Act 2000 (December 2011, Cm 8236).

Office of the Australian Information Commissioner, above n 399, at 68.

Media, Entertainment and Arts Alliance Kicking at the Cornerstone of Democracy: The State of Press Freedom in Australia (2012 Australian Press Freedom Report, NSW, 2012) at 27–28.

Ministry of Justice, above n 411, at [7].

See also United States Justice Department Freedom of Information Act Regulations: Proposed Rule, above n 318, at [16.10].

Freedom of Information Act 1982 (Cth), s 3(4).

Office of the Australian Information Commissioner Guide to the Freedom of Information Act 1982 (2011) at 43. See also Office of the Australian Information Commissioner Understanding the Value of Public Sector Information in Australia: Issues Paper 2 (November 2011) at 33, suggesting that a minimum cost approach best supports the objects of the FOI Act.

Government Information (Public Access) Act 2009 (NSW), s 127.

Section 66.

Office of the Information Commissioner New South Wales Guideline 2: Discounting charges – Special benefit to the public generally (March 2011), at Appendix A.

Government Information (Public Access) Regulation 2009 (NSW), reg 9.

Government Information (Public Access) Act 2009 (NSW), s 65(1).

See for example US Justice Department, above n 318, at [16.10], exempting search fees for requests by educational institutions, non-commercial scientific institutions, and the news media.

Issues Paper at Q68.

Ministry of Justice, above n 411, at [7.4].

White, above n 291, at 160. See chapter 4 for further discussion of politically sensitive requests.

Law Commission, above n 288, at [146].

See Ministry of Justice, above n 411, at [8].

Freedom of Information Act (Cth), s 29(4)–(5).

See for example OIA, s 22; LGOIMA, s 21.

Issues Paper at Q68.

See also the four principles proposed by the Australian Information Commissioner, above n 399, at 6.

Meeting this objective will require clear information for requesters about the cost implications of requests, such as through examples, precedents and cost estimates. See Office of the Ombudsmen Practice Guidelines – Official Information (Wellington, 2002) at Part A, chapter 3, suggesting it is appropriate for an agency to advise the requester in advance of the likely charge, so that the requester can narrow the request or discontinue it.

See for example Freedom of Information (Fees and Charges) Amendment Regulations (No 1) 2010 (Cth), where no charges are payable where an agency fails to notify a decision within the time limit. See also Office of the Australian Information Commissioner, above n 399, at 7; United States Justice Department, above n 318, at [16.10(d)(1)].

Office of the Australian Information Commissioner, above n 399, submission of Megan Carter.

See PriceWaterhouseCoopers Economic Assessment of Spatial Data Pricing and Access: Stage 2 report: cost benefit analysis of alternative models (ANZLIC Spatial Information Council, November 2010).