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International Law

: Open and Shut

Pluses mostly, and room for debate on proposed changes to FOI charges

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As part of the reform initiative, the Federal Government has released the Freedom of Information (Fees and Charges) Amendment Regulations 2009 Exposure Draft for public comment ( by 11 January). The summary: no application fees (including for internal review) will apply to access requests; no charges will apply to applicants seeking access to their own personal information under the FOI Act; for all other applications, the first hour of decision-making time will be free (except for journalists and not-for-profit community groups where the first five hours of decision making time will be free); and applications not decided within the statutory time frame will be processed free of charge.

Hard to argue against any of this. While going further than the Australian Law Reform Commission Open Government recommendations of 1995 in important respects, the proposed changes do not incorporate one ALRC recommendation- that charges should be based on documents released not withheld.

The abolition of the application fee in all cases will have the additional plus of facilitating straightforward lodgement of an application by email. The no charge where time limits are exceeded should prompt agencies to look seriously at more proactive or informal disclosure, and will place new pressure, particularly on those often late, to find efficiencies in processing.

There is room for debate whether journalists and not-for-profit- community organisations are the only applicants who deserve additional concessions on charges. Any applicant who seeks information about government's conduct of public functions for the purposes of dissemination arguably should receive similar consideration. This impinges on definitional issues, not addressed in the draft, about who is a journalist, and what constitutes a not for profit community group. The Exposure Draft leaves it to the agency- the power to waive is where an agency reasonably believes the applicant is a journalist etc. This issue cropped up earlier in the year in the context of consideration of shield laws for journalists ( the Evidence Amendment (Journalists? Privilege) Bill 2009 is still not through the Parliament) where after some debate the Government decided to go with no statutory definition. Its also an issue being considered in the context of reform of privacy laws and ALRC proposals for change to the media exemption. In both instances the issue of bloggers and citizen journalism has been raised.

Full post as published by Open and Shut on November 29, 2009 (boomark / email).