Once an FOI request has been accepted and is being processed, an applicant may incur access charges. These are charges associated with searching for and providing access to documents.
Section 22 of the Freedom of Information Act 1982, together with the Freedom of Information (Access Charges) Regulations 2014, provide the charges that may be imposed, and the procedural elements to be followed in calculating those charges.
Freedom of Information (Access Charges) Regulations 2014
The Access Charges Regulations determine the ten categories of access charges that can be made in relation to an FOI request.
These charges are listed in the Schedule to the Access Charges Regulations (see Reg 6), and include items such as search time, time to supervise an inspection, the cost of making copies, the cost of producing written documents or transcripts and the cost of providing an explanation or summary of health information. You should refer to the Access Charges Regulations for full details on each item.
A charge cannot be made for any category or item not listed in the Schedule to the Access Charges Regulations.
Other instances when a charge does not apply
No charge can be imposed for time spent:
- searching for a lost or misplaced document;
- examining a document to determine if it is exempt; or
- writing a notice of decision.
If an applicant is given access to a document in a form that is different from the form they requested, you cannot impose a charge that is greater than the charge that would apply to provide access in the requested form.
If the applicant is seeking their own personal information, charges must be waived if the applicant is ‘impecunious’ – that is, if they have little money and cannot reasonably afford the access charges (section 22(1)(i)). You could consider similar evidence of the applicant’s financial status as you would in determining financial hardship.
Rounding of access charges
Certain access charges are to be calculated with reference to the value of a fee unit. The Monetary Units Act 2004 provides that, when calculating a fee provided for by an Act, that amount may be rounded to the nearest ten cents. This means that the fee provided for by the Access Charges Regulations, being 1.5 or 1.9 fee units (where applicable), may be rounded to the nearest ten cents.
Estimating access charges
The charge should be estimated as soon as possible after the request has been accepted as valid and able to be processed. The decision maker should consult relevant business areas in order to estimate how many documents may be relevant to the request, and how many hours of search time are required.
Seeking a deposit
The agency must seek a deposit from the applicant if the estimated access charges are more than $50.00 (section 22(3), Reg 8). The deposit is calculated as follows (Reg 9):
- If the estimated charge is more than $50.00 up to $100, the required deposit is $25.00.
- If the estimated charge is more than $100.00, the deposit is 50% of the estimated charge.
An agency must advise the applicant in writing of the required deposit and ask them whether they want to proceed with the request (section 22(4)). The notice must advise the applicant of their right to apply for the charge to be reviewed, how they should apply and the timeframe (section 22(7)).
It is recommended that you discuss with the applicant practical alternatives for narrowing their request or reducing the charges. This is mandatory if the applicant requests it (section 22(6)). For example, an agency might offer to reduce the charge if the applicant agrees to extend the agency’s processing time.
The 30 day period for processing the request, as provided for by the FOI Act, starts fresh on the day the applicant pays the deposit (section 22(5)).
Access in an alternative form
If access could be provided in more than one form and the applicant has not requested a particular form, the charge must reflect access in the form that would be at the lowest reasonable cost (Reg 7).
Notice of decision
The charges decision must be given in a notice to the applicant under section 27.
An applicant may apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of a decision about the amount of a charge, but only where the Information Commissioner has certified that the matter is sufficiently important for the Tribunal to consider.
You should inform an applicant about this right of review and the need to seek a charges certificate from the Information Commissioner before commencing proceedings at VCAT. An applicant should preferably make such a request in writing and provide any supporting information to assist in assessing the request.
The Information Commissioner will determine whether to issue a charges certificate based on any information provided and enquiries conducted with the agency and applicant.