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Department of Climate Change and Energy Efficiency submission

Good morning

I refer to the Australian Information Commissioner discussion paper on the review of charges under the Freedom of Information Act 1982 (FOI Act) (the Review).  Below you will find comments in relation to the Department of Climate Change and Energy Efficiency (DCCEE) experience with the FOI Act, in response to some of the questions raised in the discussion paper.  The numerical references used below reflect those in the discussion paper (see Part 6: Issues for Consideration).

2.            Do charges deter reasonable requests for access to information?

No.  DCCEE makes every effort to consult the FOI applicants to discuss the scope of their requests in order that they may be processed at a cost that is affordable to the applicant.  The Department does not keep records as to why applicants withdraw FOI requests, and the reasons for this may be many, and are not necessarily associated with charges.  In our experience the possibility of charges is not a deterrent to FOI applicants.  Applicants are able to seek waiver of the charges, and in our experience, decision makers are accepting of reasonable grounds provided by applicants that justify their request for waiver.

3.            Is it appropriate that the FOI Act does not impose an application fee for making:

  • an FOI request?
  • an FOI request for personal information?
  • an application for internal review of an access refusal or access grant decision?
  • an application for Information Commissioner review of an access refusal or access grant decision?

While there is merit in imposing an application fee (e.g. demonstrating an applicant’s commitment to following through the FOI process), it is not likely that the current position would be easily overturned given the very recent legislative amendment to remove it.  In the interests of encouraging applicants to seek internal review with the agency that made the original decision, you might consider imposing an application fee for IC review requests. 

7.            What effect has the abolition of application fees had on FOI requests to your agency?

The Department has experienced a marked increase in applications since the abolition of application fees.  This increase can, in part, be attributed to an applicant deliberately splitting requests to capitalise on free decision making time. 

8.            What effect has the abolition of fees had on applications for internal review in your agency?

No effect.  In our experience applicants who are not satisfied with the Department’s initial decision are inclined to pursue external review.

11.          Should a different approach be adopted to imposing charges? What form should it take? For example, should the agency's obligation to process a request be capped at a particular level, as in some countries? Or should the scale of a charge vary according to the nature of the applicant or the length of time taken to process the request?

As noted above DCCEE has experienced a marked increase in FOI applications since the reform commenced.  In our view a charging mechanism is appropriate, and a number of factors come to mind in considering the most appropriate methodology.

Limit the quantity of applications that can be made at one time

In one particular situation we had one applicant who submitted over 700 separate applications in less than five months.  We understand that the applicant did this in order to capitalise on the 5-hours of free decision making time.  While the applications were combined and processed concurrently, the time required to validate and manage these requests (which remained substantial in number and also in the number of documents captured) was significant.  Further, we are aware that this same applicant also approached other Commonwealth agencies with the same split requests.  In this circumstance DCCEE was of the view that the applicant did not meet the threshold required to rely on the vexatious applicant provisions.  While this is not the normal experience for most agencies, in our view it would be useful if there were some limitations placed on the number of applications that can be submitted at one time, so as to not frustrate the process for other applicants.  

Limit the quantity of documents that can be requested at one time

In order to process FOI requests, DCCEE is frequently required to divert staff from already resource stretched teams. While FOI is not, and should not be, a cost recovery mechanism, it would benefit agencies if some parameters could be placed around the quantity of information that can be requested (i.e. to limit the quantity of information that needs to be identified and considered for release).  The unreasonable diversion test has historically been a high test to meet, and line areas do have some difficulty in being able to dedicate sufficient resources to process FOI requests within the required timeframe.  Limiting the quantity of information that can be sought in one application, and potentially limiting the quantity of applications that can be made by one applicant, might alleviate some of this pressure.

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.   

14.          In what circumstances does your agency impose charges?

DCCEE imposes charges where the quantity of documents sought is considerable.  If for example the applicant can identify a very small quantity of documents that are easily located, DCCEE decision makers exercise their discretion and do not impose charges.  DCCEE considers each request for waiver of charges on its merits.  In certain circumstances the Department has made a substantial quantity of information about a particular topic available on its website, and the additional documents sought would not make any substantial contribution, requests for waiver on public interest grounds have been refused.

16.          Where charges are notified, does this result in narrowing the scope of the request?
17.          Where charges are imposed, does this result in applicants withdrawing their requests?

In some cases yes, but our view is that in the majority of cases, the reason for withdrawal can be attributed to factors other than the proposed imposition of charges.  In the 2011/2012 financial year to date, DCCEE has had 7 applications that were withdrawn, 4 of which were withdrawn after the applicant was notified of the estimate of charges.  In the 2010/2011 financial year, the Department had 34 applications withdrawn, 10 of which were withdrawn after the applicant was notified of the estimate of charges.   As noted above, DCCEE makes every effort to consult FOI applicants to discuss the scope of their requests so that they may be processed at the lowest cost to the applicant.

21. Does your agency face difficulties in collecting charges?

Collecting charges can in certain circumstances create logistical difficulties with electronic finance systems, banking cheques and receipting monies received in an appropriate timeframe.  This can present challenges when calculating the FOI clock re-start date i.e. does the clock start when the cheque is received in the mail, or when the cheque has cleared?  Further guidance on this point would assist.

The Department has also dealt with applicants who choose not to pay the outstanding charges when they receive their decision.  In some cases, the Department has expended considerable time and resources processing large FOI requests, in which the applicant does not receive any documents because he or she chooses not to pay the outstanding charges.  The procedure the Department should follow in respect of the outstanding charges is not clear from the legislation or the guidance material available.

23. In what circumstances should charges be reduced or waived? Does the public interest test for waiver of fees need to be amended?

It is appropriate that charges be reduced or waived where a genuine public interest in the documents can be demonstrated by an applicant.  DCCEE experiences a number of requests for waiver, on the basis that information about climate change is in the public interest.  Such generic statements are not convincing, and our view is that it would assist both agencies and applicants if the guidance material on making a public interest claim, and what factors agencies should consider in determining waiver on public interest grounds, could be provided.  In any guidance for applicants on making a public interest claim, it would be useful to point out that a public interest claim is not made out by the applicant being a journalist.

24. If reduction or waiver of charges is sought, what evidence of financial hardship should be required?

DCCEE requests for example evidence of assistance from Centrelink or another form of documentary proof that an applicant is experiencing financial hardship.  Guidance on the types of evidence that would be acceptable would be useful.

Thank you for considering our comments.  Please contact me if you require clarification on any of the comments above.

Kind regards
Lauren

Lauren Primozic
Principal Legal Officer | Administrative Law Section
Legal Services Branch |Department of Climate Change and Energy Efficiency