Freedom of Information (Fees and Chances) Regulations (Amendment) 1991 No. 320
EXPLANATORY STATEMENT
Statutory Rules 1991 No. 320
Freedom of Information Act 1982
Freedom of Information (Fees and Chances) Regulations (Amendment)
Section 94 of the Freedom of Information Act 1982 (the FOI Act) empowers the Governor-General to make Regulations prescribing all matters that are necessary or convenient to be prescribed for giving effect to the Act and in particular making provision for charges for access to documents.
The amending Regulations amend the Freedom of Information (Fees and Charges) Regulations (the Principal Regulations) to implement recommendations by the Senate Standing Committee on Legal and Constitutional Affairs for maximum limits on charges payable by Australian citizens requesting access under the FOI Act to documents containing personal information about those applicants. The amending Regulations also update a reference in the Principal Regulations to the Social Security Act and change references consequential upon the Freedom of Information Amendment Act 1991.
Details of the amending Regulations are at Attachment A.
ATTACHMENT
Details of amendments to the Freedom of Information (Fees and Charges) Regulations (the amending regulations)
Regulation 1 amends the Freedom of Information (Fees and Charges) Regulations as set out in the proposed Regulations.
Regulation 2 inserts a new sub-regulation 3(3) in the Principal Regulations to provide that the new maximum limits, imposed by Regulation 6 on charges for access to personal information, do not apply to requests by persons who are non-Australian citizens or who are temporary residents in Australia.
Regulation 3 amends regulation 6 of the Principal Regulations to update a reference to the Social Security Act. Regulation 6 of the Principal Regulations at present provides that FOI Charges are not payable in respect of a request for access to documents relating to the applicant's claim for a benefit under the Social Security Act 1947. Amending regulation 3 provides an update by referring to the Social Security Act 1991.
Regulation 4 amends regulation 11 of the Principal Regulations by omitting a redundant reference to section 30 of the Freedom of Information Act. Section 30 was repealed by the Freedom of Information Amendment Act 1991.
Regulation 5 amends regulation 14 of the Principal Regulations by omitting a redundant reference to section 30 of the Freedom of Information Act. Section 30 was repealed by the Freedom of Information Amendment Act 1991.
Regulation 6 amends the Schedule to the Principal Regulations. Item 2 of Part 1 in the Schedule at present provides that a charge of $15 per hour is payable by an applicant for time spent by an agency in searching for or retrieving a document. Amending Regulation 6 inserts a new Item 2A in Part 1 of the Schedule to impose a maximum limit of $30 on charges for search and retrieval where the request is for access to documents containing personal information about the applicant.
Item 5 of Part 1 in the Schedule to the Principal Regulations at present provides that a charge of $20 per hour is payable by an applicant for time spent by an agency in making decisions on access to documents. Amending Regulation 6 inserts a new Item 6 in Part 1 of the Schedule to impose a maximum limit of $40 on charges for decision making time where the request is for access to documents containing personal information about the applicant.
Amending Regulation 6 inserts a new item 4A in Part II of the Schedule to the Principal Regulations to provide that a charge is payable for access by way of a copy of a computer tape or disk based on the actual costs incurred by the agency in producing the copy. This amendment is consequential upon the insertion by the Freedom of Information Amendment Act 1991 of a new definition of 'document' in section 4 of the Freedom of Information Act which ensures that applicants can request a copy of a computer disk or tape.
(Authorised by the Attorney-General).
Overview
The Freedom of Information (Fees and Charges) Regulations (Amendment) 1991 No. 320, enacted under the Freedom of Information Act 1982, was introduced to address the need for regulating the fees and charges associated with accessing documents under the FOI Act. The problem it aimed to resolve was the lack of clear maximum limits on the charges payable by Australian citizens for accessing personal information, which could potentially deter individuals from exercising their right to information. The enacting body for these Regulations was the Governor-General, under the authority granted by section 94 of the FOI Act. The policy objective of these amendments was to implement the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, ensuring that there are reasonable and transparent limits on the fees charged for accessing personal information under the FOI Act, while also updating references to align with legislative changes such as the Freedom of Information Amendment Act 1991.
Scope and Application
The Freedom of Information (Fees and Charges) Regulations (Amendment) 1991 No. 320, enacted under the authority of section 94 of the Freedom of Information Act 1982, apply to all persons and entities within Australia that are subject to the provisions of the FOI Act, specifically focusing on the imposition of fees and charges for access to documents. These Regulations are designed to implement recommendations from the Senate Standing Committee on Legal and Constitutional Affairs, setting maximum limits on fees payable by Australian citizens for accessing documents that contain personal information about the applicant. Notably, these new limits do not apply to non-Australian citizens or temporary residents. Furthermore, the Regulations update references in the principal regulations to align with changes in the Social Security Act 1991 and remove references to repealed sections of the Freedom of Information Act 1982. The amending Regulations also introduce maximum limits on fees for search and retrieval, as well as decision-making time, specifically for requests involving personal information, and establish a charge for copies of computer tapes or disks based on actual costs.
Key Provisions
The primary sections of the Freedom of Information (Fees and Charges) Regulations (Amendment) 1991 No. 320 pertain to the amendments made to the existing Freedom of Information (Fees and Charges) Regulations. Regulation 1 encompasses the overarching amendments to these Regulations, while subsequent regulations detail specific changes. Regulation 2 introduces a new sub-regulation 3(3) that exempts non-Australian citizens and temporary residents from the maximum limits on charges for accessing personal information. Regulation 3 updates references to the Social Security Act, replacing references to the 1947 Act with the 1991 Act, ensuring that the Regulations align with current legislative frameworks. Regulation 4 and Regulation 5 remove outdated references to repealed sections of the Freedom of Information Act, specifically section 30, which was repealed by the Freedom of Information Amendment Act 1991. Regulation 6 introduces several amendments to the Schedule, including a new Item 2A that imposes a maximum limit of $30 on charges for search and retrieval of documents containing personal information, and a new Item 6 that imposes a maximum limit of $40 on charges for decision-making time for such requests. Additionally, it introduces a new item 4A that mandates a charge based on actual costs for providing copies of computer tapes or disks.
The amending Regulations impose specific obligations on the parties and entities governed by the Freedom of Information Act 1982. These include the obligation to adhere to the new maximum limits on charges for accessing personal information, as stipulated in Regulation 6, while exempting non-Australian citizens and temporary residents from these limits as per Regulation 2. The Regulations also require agencies to update their references to the Social Security Act, as detailed in Regulation 3. Furthermore, agencies must ensure that their practices align with the new provisions regarding charges for search and retrieval, decision-making time, and the costs associated with providing copies of computer tapes or disks, as outlined in Regulation 6.
The amending Regulations do not explicitly outline specific offences or penalties for breach. However, non-compliance with the Freedom of Information Act 1982 or its Regulations could potentially lead to legal consequences. The FOI Act itself provides for various penalties, including fines and imprisonment, for breaches such as unauthorised access or disclosure of information. For instance, under section 118 of the FOI Act, a person who contravenes a direction of the Information Commissioner can be fined up to $10,000 or imprisoned for up to one year, or both. While the amending Regulations themselves do not introduce new penalties, adherence to the updated Regulations is essential to avoid any potential legal ramifications under the broader FOI Act framework.