Estimating and calculating access charges

OVERVIEW

This practice note outlines the process for estimating charges and calculating final charges when processing a request and providing access to documents (access charges). All legislative references are to the Freedom of Information Act 1982 (Vic) (the Act) unless otherwise stated.

WHAT ARE ACCESS CHARGES

Agencies may impose access charges associated with processing a request and providing access to documents, in accordance with section 22 of the Act and the Freedom of Information (Access Charges) Regulations 2014 (Regulations).

There are number of circumstances in which an agency may and may not impose access charges, and there are exceptions where charges do not apply. The common circumstances, amounts, and exceptions are set out in the appendix at the end of this practice note.

Access charges are different from the application fee imposed under section 17(2A).[1] 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 Regulations outline ten categories of ‘services’, and the charge amount that can be imposed by an agency. These are listed in the Schedule to Regulations (regulation 6) and include categories such as, search time, time for supervising an inspection of documents, providing photocopies of documents, and the cost of providing an explanation or summary of health information.[2]

WHEN ACCESS CHARGES DO NOT APPLY

An agency cannot impose a charge for anything than other than the ‘services’ listed in the Schedule to the Regulations. Section 22 also outlines a number of specific circumstances where a charge cannot be imposed. These circumstances are:

• time spent searching for a lost or misplaced document (section 22(1)(a));
• time spent determining if a document contains exempt matter or deleting exempt matter in a document (section 22(1)(e)).
• inspection of a document that should be available under Part II of the Act (section 22(1)(f)); and
• any tasks, other than making copies, a transcript or producing a document in accordance with section 19, where:
  • the applicant’s intended use of the document is one that is in the general public’s interest or benefit (section 22(1)(h)(i));
  • the applicant is a member of the Victorian Parliament (section 22(1)(h)(ii)); or
  • the request is for a document containing information relating to the personal affairs of the applicant (section 22(1)(h)(iii)).

WHEN ACCESS CHARGES MUST BE WAIVED

Access charges must be waived by an agency in the following circumstances:

• where the request is a routine request[3] for access to a document (section 22(1)(g)); or
• charges for photocopying, or the costs incurred in making a transcript or producing a document under section 19, where an applicant is impecunious (that is, they are suffering financial hardship) and the request is for a document containing their personal affairs information (section 22(1)(i)).

DECIDING WHETHER ACCESS CHARGES APPLY

WHEN ACCESS CHARGES SHOULD BE CALCULATED

Access charges should be estimated as soon as practicable after a valid request is accepted under section 17. Relevant business areas should be consulted early in order to estimate how many documents may be relevant to a request, how many hours of search time may be required, and any other charges that may apply.

An online access charges calculator is available on OVIC’s website that can be useful in estimating and calculating common access charges.

NOTIFICATION AND SEEKING A DEPOSIT

If, after consulting with the relevant business area, the estimated access charges are greater than $50.00, agencies must first notify an applicant of the estimated access charges and confirm whether the applicant wishes to proceed with the request before undertaking further work on the request (section 22(3), Regulation 8).

Professional standard 4.2 requires agencies to take reasonable steps to notify an applicant of estimated access changes within 21 days of receiving a valid request.

Information to be included in a notification

When providing an applicant with a notification under section 22(3), there are a number of requirements in section 22 and Professional Standard 4.1 that must also be included. These requirements are:

1. the estimated access charges;
2. how the estimated access charges were calculated;
3. the required access charges deposit amount – an applicant must be informed they will be required to pay a deposit. The required deposit amount is calculated in accordance with regulation 9 of the Regulations as follows:

• if the estimated charge is more than $50.00 up to $100.00, the deposit is $25.00; or
• if the estimated charge is more than $100.00, the deposit is 50% of the estimated charge;

4. the date by which the deposit must be paid – which must be no less than 60 days after an applicant receives the deposit notice as the applicant has 60 days to appeal the access charges amount;
5. information outlining that the applicant may contact the agency to discuss practicable alternatives for altering the request or reducing the anticipated access charges in accordance with section 22(6);
6. information outlining the agency may or will finalise the request without processing it if the applicant does not:

• contact the agency to discuss options to reduce the anticipated charges; or
• pay the deposit by the date specified in the notification;

7. the name and designation of the person who calculated the estimated access charge; and
8. the applicant’s right to apply within 60 days to the Victorian Civil and Administrative Tribunal (Tribunal) for a review of the access charges amount where the Information Commissioner or Public Access Deputy Commissioner (the Commissioner) issues a certificate certifying the matter is of sufficient importance to be considered.

Changes to the timeframe for processing the request

Where a notification is provided in accordance with sections 22(3) requiring payment of an access charges deposit:

• the timeframe for making a decision stops when the applicant is notified about the requirement to pay a deposit for access charges; and
• the timeframe for making a decision resets to ‘day one’ of the 30 day timeframe, the day after the applicant pays the deposit (section 22(5)).

That is, after a deposit has been paid by an applicant, an agency has the full 30 day period under section 21, as well as any applicable extensions of time, to process the request.

PAYMENT OF ACCESS CHARGES

Under Professional Standard 4.3 an agency that requires payment of an access charge deposit or access charges must take reasonable steps to provide options for payment of the relevant charges in line with accepted payment methods the agency provides for other services of a similar financial sum. This means that if the agency has an electronic transfer facility for the payment of similar amounts to the access charges, this option should be provided to the applicant to pay the relevant deposit or charges.

FORM OF ACCESS

Where an applicant requests a specific form of access

If access to a document is provided in a different form to what an applicant requested, an agency cannot impose an access charge that is greater than the charge that would apply to provide access in the form requested by the applicant (section 23(4)).

Where an applicant does not request a specific form of access

If access could be provided in more than one form, and the applicant has not requested a particular form, the access charge must reflect access in the form that would be at the lowest reasonable cost, even if access is provided in a form that would typically incur greater access charges (regulation 7).

ROUNDING OF ACCESS CHARGES

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 year. To calculate the applicable access charge, the current value of fee unit needs to be first 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.

Example

If the value of a fee unit set was $13.08, the charge for two hours of search time (being 1.5 fee units per hour or part of an hour[4]) would be calculated as follows:

Step 1: $13.08 x 1.5 = $19.62 (this amount is the charge for search time per hour or part of an hour).

Step 2: $19.62 x 2 hours search time = $39.24 (this amount is the total charge for two hours of searching).

Step 3: Round $39.24 (the charge) to the nearest 10 cents. The access charge would be $39.20.

NOTICE OF DECISION

Any access charges amount outstanding and required to be paid by an applicant should be detailed in a decision letter prepared in accordance with section 27.

An applicant is entitled to apply to the Tribunal for review of a decision about the amount of a charge even in circumstances where they have previously paid a deposit or actual access charges. As noted above, prior to making an application to the Tribunal, the Commissioner must certify the matter is of sufficient importance for the Tribunal to consider (section 50(1)(g)). An applicant should be advised of this right in the agency’s decision letter.

Agencies are not required to provide access to the documents until the applicant has paid any outstanding access charges.

THE PROCESS FOR IMPOSING ACCESS CHARGES

[1] For further information on application fees see Practice Note 3.

[2] Refer to the Schedule in the Regulations for the full details on each category.

[3] For further information on routine requests see Practice Note 7.

[4] See the Schedule to the Regulations for this information.