When an access charges certificate may be issued to refer a matter to the Tribunal

This practice note outlines the principles the Information Commissioner or Public Access Deputy Commissioner (the Commissioner) consider when deciding whether to issue an access charges certificate under section 50(1)(g) of the Freedom of Information Act 1982 (Vic) (the Act). All legislative references are to the Act unless otherwise indicated.

STATUTORY OVERVIEW

An agency may require an applicant to pay a fee (access charges) associated with processing a request or providing access to documents. These charges are calculated in accordance with section 22 of the Act and the Freedom of Information (Access Charges) Regulations 2014 (Regulations).

Where an applicant disagrees with an agency’s decision to impose access charges, section 50(1)(g) of the Act permits the applicant to apply to the Victorian Civil and Administrative Tribunal (Tribunal) for a review of the agency’s decision to impose the access charges. This extends to circumstances where the applicant has previously paid a deposit or actual access charges.

However, before an applicant can apply to the Tribunal, the Commissioner must certify that the matter is one of sufficient importance for the Tribunal to consider.[1]

CONSIDERATIONS

Section 50(1)(g) of the Act does not set out matters for the Commissioner to consider when deciding whether a matter is of sufficient importance for the Tribunal to consider. In light of this, the Commissioner may consider any matter that is relevant to making this assessment. However, given the scope and context of section 50(1)(g), the matters set out below are generally considered relevant.

A real or significant argument that there is an error in the decision to either impose the access charges or to impose the amount of access charges to be paid

Whether there has been an error in calculating the access charges, for example, the agency incorrectly applying items in the Regulations resulting in substantially higher access charges than permitted.[2]
Whether access charges for the documents can be waived on grounds of financial hardship where the requested documents relate to the personal affairs of the applicant.[3]
Whether access charges for search time have been imposed where the applicant seeks access to a document containing their own personal affair information.[4]
Whether an applicant has been charged for a search that was previously completed by an agency during an earlier FOI request.
Whether access charges for search time have been imposed where the applicant’s intended use of the document is of general public interest or benefit.[5]
Whether access charges have been imposed for a routine request.[6]

A matter of public or general importance in the context of the Act that the Tribunal should determine

Whether the access charges have been calculated in a manner that furthers the object of the Act – to facilitate and promote the disclosure of information at the lowest reasonable cost.
Whether there has been a change in the way an agency stores information resulting in changes to how access charges are calculated.
Whether there is a rare, unconventional, or new method of storing information that agencies use to retrieve or make copies of documents which increases access charges.

The matter should otherwise be certified for the Tribunal to review in the interests of fairness and justice

Whether the agency has, at the request of the applicant, discussed practicable alternatives for altering the request or reducing the anticipated charge.[7]
The significance of the error in calculating the access charges, that resulted in substantially higher access charges than permitted.
The circumstances of the request and the access charges decision. This may include factors such as the type of applicant and the documents requested, the applicant’s proposed use of the documents and the agency’s decision on the request, including the type or number of documents proposed to be released.

INFORMAL RESOLUTION AND COMMISSIONER’S PRELIMINARY VIEW

Where possible, the matter will be resolved informally. The Case Manager may obtain further information from an agency about its reasoning for imposing access charges and discuss this with the applicant. The Case Manager will then try to facilitate an informal resolution between an applicant and the agency.

The Commissioner may also form a preliminary view on whether they consider the matter may be of sufficient importance for the Tribunal to consider. Where the likely outcome is to decline to certify the matter, the applicant will be advised and provided with an opportunity to respond. Alternatively, the applicant may decide to withdraw their request for an access charges certificate.

Where the Commissioner is likely to certify the matter, the agency will be provided with the reasons for the Commissioner’s view and provided with an opportunity to respond. Following the Commissioner’s preliminary view, an agency may decide to reconsider its decision to impose access charges. This may result in an agency revising the amount of access charges imposed or the provision of a refund in full or in part with respect to the access charges imposed (deposit or actual access charges).

CERTIFYING OR DECLINING TO CERTIFY THE MATTER

If the Commissioner is satisfied the matter is of sufficient importance for the Tribunal to consider, a certificate will be issued which permits the applicant to apply to the Tribunal for a review under section 50(1)(g) of the Act.

Where the Commissioner is not satisfied the matter is one of sufficient importance for the Tribunal to consider, the applicant does not have the right to apply to the Tribunal for a review of the access charges amount. In these circumstances, the applicant may consider taking the following steps:

pay the access charges that have been imposed by the agency to release the documents;
re-scope the request to reduce the number of documents, which may result in a reduction in the access charges amount;
withdraw the request and make a new amended or narrower request; or
do not pay the access charges and no further action will be taken by the agency.

[1] Sections 6G and section 6H authorise the Commissioners to determine whether to certify a matter as being of sufficient importance for the Tribunal to consider.

[2] For example, in Sunbury v Hume [2004] VCAT 2344, the Tribunal interpreted section 22(1)(a) of the FOI Act such that if an agency proactively searches for documents between sending an estimate and before an applicant agrees to proceed (either by full payment or deposit), then the agency cannot charge for the costs of searches undertaken during this time.

[3] See section 22(1)(i).

[4] See section 22(1)(h)(iii).

[5] See section 22(1)(h)(i).

[6] See section 22(1)(g).

[7] See section 22(6).