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Freedom of Information Act 1982

Practice Note 2: Fees and Charges

Summary

An application fee must accompany a request for access (unless waived or reduced on hardship grounds) for it to be valid.

Access charges cannot be imposed or must be waived in some particular circumstances (eg routine requests).

Access charges are otherwise payable for search time, inspection, and copies or other forms of access.

Special rules apply for some individuals or circumstances (e.g. impecunious applicants seeking documents containing information about their personal affairs).

Estimate access charges as soon as possible after receiving a valid request.

A deposit must be sought from an applicant if estimated access charges exceed $50.00.

Apply access charges consistently between applicants, subject to certain exceptions.

¹Note: references in this Practice Note to sections are references to sections of the Freedom of Information Act 1982 (Vic) ("FOI Act") unless otherwise stated. In this Practice Note, a reference to an agency includes a reference to a Minister (or decision maker acting on the Minister's behalf) .

APPLICATION FEES

1. What fees are payable under the Act?

Subject to one exception, one of the conditions of a valid request for access existing under section 17 of the Freedom of Information Act 1982 (FOI Act) is that it be accompanied by an application fee. The application fee is 2 fee units (section 17(2A)). A "fee unit" is an amount set by the Treasurer and published in the Government Gazette from time to time in accordance with the Monetary Units Act 2004.

From 1 July 2009 the application fee of 2 fee units is $23.40. That amount is likely to change each year as the Treasurer publishes the new amount for a fee unit in the Government Gazette. For more information about the current application fee.

The exception referred to earlier is where the application fee is waived or reduced by an agency on hardship grounds (see further below).

It should be noted that there is no application fee payable for a request for internal review of an initial decision made in relation to a request for access.

Appendix 1 to this Practice Note sets out summary information about the application fee payable.

2. When can an application fee be waived or reduced?

A request can still be a valid request if the agency agrees that the application fee ought to be waived or reduced on grounds of hardship. The application fee may be waived or reduced if payment of the fee would cause hardship to the applicant. Waiver or reduction can occur whether or not the fee has already been paid by the applicant.

Hardship arises when payment of the application fee would cause severe suffering or privation (lack of the comforts or necessities of life). Whether or not payment would cause hardship to an applicant should be determined on a case by case basis. The answer will depend on the applicant's circumstances in each case.

In order to determine the question, you need to obtain appropriate evidence from the applicant. Sometimes that evidence is provided with the request - other times you may have to seek it from the applicant if waiver or reduction of the application fee is sought.

Although it will not necessarily be so in each case, generally, if the applicant can produce evidence that he or she is receiving social security payments of some kind, it may be sufficient evidence that payment would cause hardship to the individual (for example, a social security concession card, health benefits card, evidence of unemployment, etc.).

Other types of evidence might include:

a statement of after tax income and expenses;
bank balances;
whether the person has any dependents (eg partner, children);
if the person has a partner, whether the partner is in the workforce.

There are advantages for applicants and agencies if agencies develop a policy regarding the waiving of fees and consistently apply it.

An application fee is different to a charge for access (these are dealt with further below).

3. What charges are payable under the FOI Act?

Charges for access are payable where they are required to be paid by the Freedom of Information (Access Charges) Regulations 2004 ("Access Charges Regulations") - section 22. Where a valid request has been made under the FOI Act, and any charges that are payable under the Access Charges Regulations have been paid, only then must an agency give a person access to requested documents (other than exempt documents or parts of documents) - sections 20 and 22.

The types of access charges² which may be incurred in relation to an FOI request can include a charge for:

time that would be spent to conduct routine searches for documents (which must be calculated on an hourly basis);
time spent in providing access by way of supervised inspection;
providing access by way of copies of documents;
photocopying or costs incurred in making a transcript or producing a written document from an electronically stored source where it does not already exist in discrete written form.

Appendix 2 to this Practice Note sets out a summary of the types of charges payable and the circumstances in which they become payable.

When considering access charges it is important to bear in mind that the policy behind the access charges is to ensure that processing of FOI requests be conducted on as near a cost-recovery basis as feasible.

² Subject to specific exceptions set out in the FOI Act and the Access Charges Regulations. See Reg 6 and Schedule, Access Charges Regulations.

4. What access charges cannot be imposed?

An agency cannot charge for:

time spent searching for a lost or misplaced document;
time spent by an agency in examining a document and determining whether it is exempt from access or not;
time spent by an agency in deleting exempt matter from a document when providing an edited document under section 25;
producing a document which should be in a statement under Part II of the FOI Act (whether or not it appears in such a statement);
anything other than photocopying charges or costs incurred in making a transcript or producing a written document from an electronically stored source where:
- the request was made by a member of the Victorian Parliament; or
- the request is for documents containing information relating to the personal affairs of the applicant; or
- the document is intended to be used for the general public interest or benefit.

5. When must access charges be waived?

Access charges must be waived in the following circumstances:

if a request is a routine request for access to a document (see further below).
where the amount is for photocopying or costs incurred in making a transcript or producing a written document from an electronically stored source, and the request is for documents containing information relating to the personal affairs of the applicant, and the applicant is impecunious (see below as to when someone is impecunious).

6. When is a request a routine request?

Section 22(1)(g) of the FOI Act provides that a charge shall be waived if the request is a routine request for access to a document. A routine request is one which is received by an agency on a regular or routine basis, or which seeks routine types of documentation which would have been released outside the FOI Act if that Act did not exist. Consistently with the Attorney General’s Guidelines of February 2000 ³, requests for access to routine information or documents should be dealt with outside the FOI Act and without charge.

Traditionally, the documents falling within the description of a routine request are those which may have been disclosed as part of normal administrative practice. For example, an individual’s own employment records, information provided by an individual to an agency, innocuous project material sought by students for educational purposes and documents which are already freely available (but not for a fee or charge) such as published reports, fall under the category of ‘routine’.

If such matter is sought under the FOI Act, disclosure should occur outside the FOI Act unless, for example:

it is necessary to give the applicant review rights (e.g. if some parts will be withheld as exempt or irrelevant);
it is appropriate to deal with it under the FOI Act to enable documents to be released while ensuring there is protection against possible defamation, breach of confidence or an interference with privacy (see section 62).

Routine requests are different to the ‘administrative release’ of documents envisaged by section16.

³See FOI Act Guidelines

7. When is an individual impecunious?

An individual is impecunious if he or she is poor, in want of money or has little money, or is unable to reasonably afford the access charges. The aim of the provision requiring waiver of charges for an impecunious applicant is to avoid causing hardship to an applicant by the payment of access charges when seeking information relating to their personal affairs.

Considerations as to when payment of an application fee may cause hardship (see item 2, above) are equally relevant in determining whether an applicant is impecunious.

8. At what point in time should charges be calculated?

An estimate of charges should be made and advised to the applicant as soon as practicable after the agency has determined that it has received a valid request and there is no reason not to process the request (eg not voluminous, not repeated, not to be transferred, etc.). Such an estimate should be made after relevant inquiries within the agency are performed to determine a reasonable estimate of access charges. In making such an estimate, an agency is not currently permitted to impose a charge for a search that has already taken place even if the only reason for the search was the applicant’s request for access. This is because section 22(1)(a) refers to charging for time that would be spent, not time already spent.

9. How do you charge for access if more than one form of access is available?

If access can be provided in more than one form as permitted under the FOI Act, and the applicant’s request does not specify the form sought, the agency cannot charge more than the cheapest form of access even if a different form of access is provided – see Reg 7, Access Charges Regulations.

If the applicant specifies the form of access required, the charge applicable to that form of access as set out in the Schedule to the Access Charges Regulations should be imposed.

10. Are there any special rules for members of the Victorian Parliament?

If the applicant is a member of the Legislative Assembly or Legislative Council in the Victorian Parliament, an agency may not charge an amount other than a photocopying charge or for reasonable costs incurred in making a transcript or producing a written document from an electronically stored source.

Therefore no search time can be charged, nor can the costs of supervised inspection be charged to members of the Victorian Parliament.

11. Are there any special rules for individuals?

A special rule applies to individuals, but only where they seek access to documents containing information about themselves. If access is sought to documents containing information other than their own personal affairs information, no special rules apply for individuals. If an individual seeks access to documents containing information about them, an agency may not charge an amount other than for photocopying or for reasonable costs incurred in making a transcript or producing a written document from an electronically stored source. There is no charge payable for search time, supervised inspection, etc. If, in addition, the applicant is impecunious, even the photocopying charge or reasonable costs incurred in making a transcript or producing a written document from an electronically stored source must not be charged. See item 7 above in relation to when an applicant may be considered impecunious.

12. In what circumstances must a deposit be sought?

A deposit must be sought where the estimated access charges will exceed $50.00 (section 22(3), FOI Act and Reg 8, Access Charges Regulations). The deposit amount is to be calculated as follows⁴:

If the estimated access charge is between $50.00 and up to $100, the deposit amount is $25.00;
If the estimated access charge is more than $100.00, the deposit amount will be 50% of the estimated charge.

As part of this process agencies are required to inquire whether the applicant wants to proceed with the request.

⁴ Reg 9, Access Charges Regulations.

13. How is a deposit sought?

A deposit is best sought by notice in writing to the applicant setting out:

the agency’s view that the estimated access charges may exceed $50.00;
the question whether the applicant wishes to proceed with the request;
that if the applicant wishes to proceed with the request, the deposit amount on account of the access charges must be paid (setting out the correct deposit amount).

14. What are the consequences of the applicant paying a deposit?

If an applicant is required to pay a deposit on account of access charges, under s22(6) the 45 day period, being the latest date by which a decision on the request for access must be communicated to the applicant, is deemed to have commenced on the date the agency receives the deposit. The balance of the charges is payable by the applicant once a decision in relation to their request is made but prior to documents being provided to them.

15. Can different charges be imposed on different types of applicants?

In short, subject to some exceptions which are set out in Appendix 2 , the answer is no. The charges set by the Access Charges Regulations must be the same for all agencies and applied to all applicants. No variation of charges is permitted between different applicants in respect of like services other than as provided for in the FOI Act. Therefore, unless there is a specific exception in section 22, access charges are the same for different types of applicants.

16. What should be provided to an applicant who has not paid final charges?

The FOI Act requires all reasonable steps be taken to notify the applicant of a decision as soon as practicable but in any case no later than 45 days after the day on which the request was received. This decision letter should seek any final access charges that may be payable. Access to documents need not be provided until those final access charges have been paid.

Appendix 1: Fees

Appendix 1: Fees
Amount	Section of Act	Exception
$23.40 (as at 1/7/09)	section 17(2A)	section 17(2B)
Increases in accordance with the Monetary Units Act 2004, usually annually	2 fee units	Waive or reduce, whether or not the fee has been paid, if payment would cause hardship Waive upon receipt of evidence of hardship e.g. a copy of a current Health Care or Pension Card.

Appendix 2: Access Charges

Appendix 2: Access Charges
Category	Amount	Section of Act / Regs	Exceptions
Search	$20 per hour or part of an hour. Charge only for the time to be spent conducting a routine search.	section 22(1)(a) & (b) Item No. 1 - Schedule of the Access Charges Regulations	Charge shall not be made if: Vic MP request – section 22(1)(h)(ii) Applicant’s personal affairs request –section 22(1)(h)(iii) Intended use of general public interest or benefit – section 22(1)(h)(i)
Photocopying	$0.20 per black and white A4 page. Reasonable costs incurred for other than black and white photocopies	section 22(1)(d) Item No. 3 - Schedule of the Access Charges Regulations Item No. 4 - Schedule of the Access Charges Regulations	Charge shall be waived if: Impecunious and the request is applicant’s personal affairs request – section 22(1)(i)
Creating a document by the use of a computer	Reasonable costs incurred	section 19 and 22(1)(d) Item No. 7 - Schedule of the Access Charges Regulations	Charge shall be waived if: Impecunious and the request is applicant’s personal affairs request – section 22(1)(i)
Supervision	$5 per ¼ hour or part of a ¼ hour	section 22(1)(c) Item No. 2 - Schedule of the Access Charges Regulations	Charge shall not be made if: Vic MP request – section 22(1)(h)(ii) Applicant’s personal affairs request – section 22(1)(h)(iii) Intended use of general public interest or benefit – section 22(1)(h)(i) Charge shall be waived if: Impecunious and the request is a personal affairs request – section 22(1)(i)
Access in a form other than photocopies	Reasonable costs incurred	section 19 Item No. 7 - Schedule of the Access Charges Regulations	Charge shall be waived if: Impecunious and the request is a personal affairs request – section 22(1)(i)
Listening to or viewing documents	Reasonable costs incurred in making arrangements. Supervision charges may also apply.	section 22(1)(d) Item No. 5 - Schedule of the Access Charges Regulations	Charge shall not be made if: Vic MP request – section 22(1)(h)(ii) Applicant’s personal affairs request – section 22(1)(h)(iii) Intended use of general public interest or benefit – section 22(1)(h)(i) Charge shall be waived if: Impecunious and the request is a personal affairs request – section 22(1)(i)
Making a written transcript	Reasonable costs incurred	section 19 and.22(1)(d) Item No. 6 - Schedule of the Access Charges Regulations	Charge shall be waived if: Impecunious and the request is a personal affairs request – section 22(1)(i)
Health service provider providing explanation	Reasonable costs incurred, not exceeding (a) $25 per ¼ hour or part of a ¼ hour; or (b) $80 – whichever is the lesser	section 23(1)(e) Item No. 8 – Schedule of the Access Charges Regulations	Charge shall not be made if: Vic MP request – section 22(1)(h)(ii) Applicant’s personal affairs request – section 22(1)(h)(iii) Intended use of general public interest or benefit – section 22(1)(h)(i)
Providing explanation of health information if agency is not a qualified health service provider	The usual fee of the provider for a consultation of a comparable duration	section 23(1)(e) Item No. 9 – Schedule of the Access Charges Regulations	Charge shall not be made if: Vic MP request – section 22(1)(h)(ii) Applicant’s personal affairs request – section 22(1)(h)(iii) Intended use of general public interest or benefit – section 22(1)(h)(i)
Summary of health information	Reasonable costs incurred, not exceeding (a) $25 per ¼ hour or part of a ¼ hour (b) $80 – whichever is the lesser	section 23(1)(e) Item No. 10 – Schedule of the Access Charges Regulations	Charge shall not be made if: Vic MP request – section 22(1)(h)(ii) Applicant’s personal affairs request – section 22(1)(h)(iii) Intended use of general public interest or benefit – section 22(1)(h)(i)
Deposit	$25 if estimated amount of the charge exceeds $50 but does not exceed $100. 50% if estimated amount of the charge exceeds $100	section 22(3)-(7) Regulations 8 and 9 of the Access Charges Regulations	n/a

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