Freedom of Information (Access Charges) Regulations 2014

Under the FOI Act, an agency is entitled to charge an applicant for certain activities involved in searching for and providing access to documents. These charges are known as ‘access charges’.

The objectives of the Regulations are to prescribe the costs involved in providing access to documents (for example, searching or creating a document) and the costs of providing different forms of access (for example, via hardcopy or inspection).

Regulation 2 details the relevant provisions of the Act that enable the regulations with respect to access charges to be made (section 22(1A) and section 66).

Section 66(1)(a) permits regulations to be made that set the access charges amount when providing access to documents.

Section 22(1A) permits regulations made under section 66 to prescribe:

• different amounts for documents containing health information relating to the applicant according to the form in which access is given; and
• amounts by reference to the usual fee of a person for a consultation of a comparable duration.

Regulation 3 outlines when the regulations commenced, which was 28 June 2014.

There are no guidelines in relation to Regulation 4.

Regulation 5 provides that a reference to an agency in the Regulations includes a Minister.

Regulation 7 and the Schedule to these Regulations contains references to ‘the agency’. In each instance this also means ‘the Minister’.

Regulation 6 provides that if an applicant has made a valid request under section 17, they are liable to pay the charges set out in the Schedule to the Regulations.

Access charges must be calculated and waived in accordance with the principles set out in section 22.

As with section 22, the Regulations distinguish between application fees and access charges.

The ‘Note’ here confirms this distinction, noting that access charges are in addition to application fees under section 17(2A), being a ‘fee of 2 fee units’.

Under section 50(1)(g), an applicant may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of a decision on the amount of a charge that is required to be paid before access to a document is granted.

However, the Information Commissioner must first certify that the matter is one of sufficient importance for VCAT to consider.

Under section 52(1) an application under section 50(1)(g) must be made within 60 days of the day on which notice in writing of a decision on the request is given to the applicant.

When calculating access charges, agencies must ensure they consider the object of the Act in section 3 – to promote the disclosure of government held information at the lowest reasonable cost.²

Regulation 7 operates where an applicant does not request a specific form of access, and access could be provided in more than one form as detailed in section 23.

Regardless of the form of access an agency chooses, it must only charge for access in the form that would be the lowest reasonable cost to the applicant.

Section 22(3) states:

If in the opinion of an agency a charge may exceed $25 or such greater amount as is prescribed by regulation the agency shall notify the applicant of its opinion and inquire whether the applicant wishes to proceed with the request.

Regulation 8 prescribes a “greater amount” being $50. As such, the lower amount of $25 should be ignored.

Therefore, if an agency estimates the access charge may exceed $50, section 22(3) requires the agency to notify the applicant of the estimated access charge and confirm whether the applicant wishes to proceed with the request before undertaking further work on the request.

If an agency estimates an access charge may exceed $50 (per Regulation 8), section 22(3) requires the agency to notify the applicant of the estimated access charge and confirm whether the applicant wishes to proceed with the request before undertaking further work on the request.

Section 22(4) requires the notice under section 22(3) to inform the applicant that they will be required to pay a deposit on account of the estimated access charge.

The deposit amount is determined by Regulation 9 as follows:

• $25 if the estimated access charge is $100 or less; or
• 50% of the total estimated access charge if the charge exceeds $100.

Before making a decision on the request, an agency can only require payment of a deposit amount, not the full estimated access charge: section 22(2).⁴

The Schedule to the Regulations provides the access charge amounts or rates for each item. These items relate to processing costs and costs associated with the form in which access to a document is granted.

Some access charges are calculated using the value of a ‘fee unit’.

The value of a fee unit is prescribed by the Department of Treasury and Finance and increases with indexation each To calculate the applicable access charge, the current value of the fee unit needs to be multiplied by the amount noted in the Schedule to the Regulations (either 1.5 or 1.9 fee units, depending on the access charge under consideration) and then further multiplied by the amount of time taken to provide access.

Section 7(4) of the Monetary Units Act 2004(Vic) provides that, when calculating a fee provided for by an Act, the fee amount may be rounded to the nearest ten cents. This means the total fee payable (access charge amount) may be rounded to the nearest ten cents.

The current value of a fee unit is published on the website of the Department of Treasury and Finance.

Section 22(1)(d) permits an agency to charge for the reasonable costs incurred by the agency in the circumstances set out below.

The calculation of reasonable costs will depend on the context of the situation, with consideration given to the object of the Act in section 3 – to promote the disclosure of government held information at the lowest reasonable cost.

Reasonable costs may be charged in the following situations:

• in supplying copies of documents (other than black and white photocopy of an A4 page) – Item 4 of the Schedule;
• in making arrangements to hear or view sounds or visual images – Item 5 of the Schedule;
• in providing a written transcript of the words recorded or contained in documents – Item 6 of the Schedule; and
• in providing a written document produced under section 19 – Item 7 of the Schedule.

An agency may charge the costs for postage or delivery of the documents. This should be the actual cost of the service.

However, an agency should also consider whether documents can be provided electronically, if privacy and security considerations permit.

If provided electronically no charge should be made.

An agency may charge the costs for providing documents on USB or CD. This should also be the actual cost of the storage medium.

An agency may charge the costs involved in retrieving hard-copy or soft-copy documents from an offsite location, if documents of that nature are routinely stored offsite.

The applicant should not be placed at a disadvantage in accessing documents due to unreasonable retrieval costs merely because an agency has made a business decision to store documents offsite.

An agency that stores documents at an offsite location must ensure retrieval costs charged to an applicant meet the object of the Act and are reasonable. In many instances this may involve the agency not being able to fully recover the costs involved.

Additionally, where an agency archives documents after a short period of time, for example 12 months after the date of creation, the costs to retrieve the document are unlikely to be considered routine or reasonable. In contrast, if documents seven years old or more are archived offsite, the costs to retrieve this type of document are likely to be considered routine and reasonable.

Under section 22(1)(i), if an applicant is impecunious and the document contains the applicant’s personal affairs information, the agency must waive any charges under section 22(1)(d) (Items 3-7 of the Schedule).

That is, an agency must waive charges for:

• supplying copies of documents;
• making arrangements to view documents;
• providing a written transcript; or
• producing a document under section 19.

‘Impecunious’ is defined broadly. It means being poor, in want of money, having little money, or being unable reasonably to afford the access charges, rather than having no money at all.⁹ The purpose of waiving an access charge is to avoid causing an applicant further financial hardship.

If an agency waived payment of the application fee based on hardship under section 17(2B), it follows that an agency should also waive any access charges if the requested documents contain the applicant’s own personal information.

Conversely, if an applicant has paid the application fee under section 17(2B), the agency should not take this as evidence the applicant can pay access charges. An applicant may not be able to reasonably afford the access charges, even though the application fee was paid.

The amount of evidence sought by an agency or Minister must be proportional to the amount of the charge involved. In a usual situation where the amounts are not large, a detailed inquiry into the applicant’s means may not be justified. In most cases, an inquiry about income, estimated weekly commitments, and available cash in bank or similar accounts may be sufficient to assess hardship.¹⁰

Note that there are exceptions for the Schedule and circumstances where access charges must be waived.

These exceptions are detailed in the far-right column in the table below.

Section 22(1)(b) fixes the search time charge at an hourly rate.¹⁴ Item 1 of the Schedule fixes the charge amount at 1.5 fee units per hour or part of an hour.

This includes where the searches are for documents held or stored electronically.¹⁵ Documents held or stored electronically are subject to ordinary access provisions of the Act.¹⁶ Electronically stored documents include emails and other printable documents such as word processing documents, PDFs and excel spreadsheets.

Reminder, a charge under Item 1 cannot be made if the:

• Intended use is of general public interest or benefit – section 22(1)(h)(i).
• Applicant is a member of the Victorian Parliament – section 22(1)(h)(ii).
• Applicant is requesting information relating to their personal affairs – section 22(1)(h)(iii).

When calculating access charges, agencies must ensure they consider the object of the Act in section 3 – to promote the disclosure of government held information at the lowest reasonable cost.

Under section 22(1)(c) a charge may be made for the time spent supervising the inspection by the applicant of the material to which access is granted. This may be inspection of a document or viewing sound or visual images under the supervision of an officer of the agency.

Item 2 of the Schedule fixes the charge amount at 1.5 fee units per hour, calculated per quarter hour or part of a quarter hour.

Reminder, a charge under item 2 cannot be made if the:

• Intended use is of general public interest or benefit – section 22(1)(h)(i).
• Applicant is a member of the Victorian Parliament – section 22(1)(h)(ii).
• Applicant is requesting information relating to their personal affairs – section 22(1)(h)(iii).

When calculating access charges, agencies must ensure they consider the object of the Act – to promote the disclosure of government held information at the lowest reasonable cost.

Item 3 of the Schedule fixes the cost of black and white photocopying at 20 cents per A4 page.

Reminder, a charge under Item 3 must be waived if the applicant is impecunious and the request is for information relating to their personal affairs – section 22(1)(i).

When calculating access charges, agencies must ensure they consider the object of the Act in section 3 – to promote the disclosure of government held information at the lowest reasonable cost.

Section 22(1)(d) and Item 4 of the Schedule permits an agency to charge for the reasonable costs incurred by the agency in supplying copies of documents (other than black and white photocopy of an A4 page).

Reminder, a charge under Item 4 must be waived if the applicant is impecunious and the request is for information relating to their personal affairs – section 22(1)(i).

When calculating access charges, agencies must ensure they consider the object of the Act in section 3 – to promote the disclosure of government held information at the lowest reasonable cost.

Section 22(1)(d) and Item 5 of the Schedule permits an agency to charge for the reasonable costs incurred by the agency in making arrangements to for viewing documents.

Reminder, a charge under item 5 must be waived if the applicant is impecunious and the request is for information relating to their personal affairs – section 22(1)(i).

A charge under item 5 cannot be made if the:

• Intended use is of general public interest or benefit – section 22(1)(h)(i).
• Applicant is a member of the Victorian Parliament – section 22(1)(h)(ii).
• Applicant is requesting information relating to their personal affairs – section 22(1)(h)(iii).

When calculating access charges, agencies must ensure they consider the object of the Act – to promote the disclosure of government held information at the lowest reasonable cost.

Section 22(1)(d) and Item 6 of the Schedule permits an agency to charge for the reasonable costs incurred by the agency in providing a written transcript of the words recorded or contained in documents.

Reminder, a charge under item 6 must be waived if the applicant is impecunious and the request is for information relating to their personal affairs – section 22(1)(i).

When calculating access charges, agencies must ensure they consider the object of the Act – to promote the disclosure of government held information at the lowest reasonable cost.

Section 22(1)(d) and Item 7 of the Schedule permit an agency to charge for the reasonable costs incurred by the agency in producing a written document under section 19.

For example:

• reasonable costs may be calculated based on the pay rate of the officer producing the document. However, charging at the pay rate of an executive level officer may not be considered reasonable.
• reasonable costs may be the costs of external consultants used to retrieve data to produce a document.

An agency should not use Item 7 when calculating access charges for searching for electronically stored documents and emails.¹⁸ Instead, the agency should charge for search time using Item 1 of the Schedule. Electronically stored documents include printable documents such as word processing documents, PDFs and excel spreadsheets.

Reminder, a charge under Item 7 must be waived if the applicant is impecunious and the request is for information relating to their personal affairs – section 22(1)(i).

When calculating access charges, agencies must ensure they consider the object of the Act – to promote the disclosure of government held information at the lowest reasonable cost.

The Act provides for special forms of access to an applicant’s own health information that align with the forms of access in the Health Records Act 2001.

Items 8-10 of the Schedule set out the access charges amounts for these special forms of access to an applicant’s own health information.

However, as a request for an applicant’s own health information is a request for information relating to the personal affairs of the applicant, section 22(1)(h)(iii) requires the access charges in Items 8-10 of the Schedule to be waived.