The right to make an FOI application is available to everyone, regardless of their financial status.

The Regulations provide that agencies (through the Accredited FOI Officer) must waive or remit (including refund) fees and charges if the applicant can satisfy the agency that:

• he or she is a concession card holder, or
• payment of the fee or charge would cause them financial hardship.

Agencies (through the Accredited FOI Officer) also have the discretion to reduce or waive a fee at its own discretion, on a case-by-case basis. For example, an agency may decide to waive all fees and charges for an applicant who is seeking information for research purposes.

Section 53(2)(b) of the FOI Act entitles South Australian Members of Parliament (MPs) to access documents under FOI without charge unless the work generated by the application $1000.

Applications from MPs are often broad and complex. If an agency estimates that the cost of dealing with an application will generate fees and charges totalling more than $1000, the normal policy of charging fees should be applied unless the agency decides to exercise its discretion to waive, reduce or remit the fee.

Where it is estimated that the cost to processing the application will significantly exceed the $1000 threshold, consideration should be given to seeking an advanced deposit.

No fee can be charged for up to the first two hours spent by the agency in dealing with the application where the applicant is seeking their own personal information.

For each subsequent 15 minutes spent past the two hours by the agency in processing the application, a fee may be charged unless the applicant is entitled to a fee waiver.

Under section 30 of the FOI Act an agency cannot charge applicants any fees or charges, when an applicant lodges an amendment application.

This includes an application for an internal review of an amendment application.

Reviews of fees and charges are subject to review if requested.

Where the agency thinks it is appropriate, the fee must be reduced.

A person seeking a review of a fee or charge under section 53(3) is not required to pay an application fee or any other charge in relation to the review.

Where the agency refuses to reduce the fee or charge and the applicant is dissatisfied, the applicant may apply to the Ombudsman for a further review of the fee or charge.

The Ombudsman may then:

• waive, confirm or vary the fee or charge, or
• give directions as to the time for payment of the fee or charge.

An application for an internal review is subject to an application fee, unless the applicant is seeking an internal review to amend personal records.

While agencies can charge an applicant for production costs such as photocopying and providing a written transcript they cannot charge for the time it takes to process an internal review application.

This is because they have, in effect, already dealt with the application when the original determination was issued.

If an agency varies or overturns their original determination, including where an agency provides access to a document as a result of the internal review, the internal review application fee must be refunded.

Agencies should consider the appropriateness and impact of charging consultees an application fee for an internal review.

In instances where consultees are aggrieved by a determination and seek to have that determination reviewed it may be appropriate for an agency to use its discretionary ability to waive, reduce or remit the fee.

Section 17 of the FOI Act allows agencies to request payment of an advance deposit where the agency is of the opinion that dealing with the application will exceed the application fee.

Prior to requesting an advance deposit, agencies should first attempt to narrow the scope of the application with the applicant.

To request an advance deposit the agency must write to the applicant advising:

• that an advance deposit is required
• the reasonable time frame in which it must be paid and
• that the application has been suspended until payment is received.

Where a deposit has been requested but not paid by the specified due date, an agency may refuse to continue to deal with the application.

An applicant can review such a determination.

The period between making the request for an advance deposit and the payment of the deposit by the applicant is not to be taken into account in calculating the time an agency has to deal with the application. In other words, the ‘clock stops ticking’ until the applicant pays the advance deposit.

Agencies must record all fees and charges relating to FOI applications as part of their annual reporting obligations.

More information on reporting requirements can be found in the FOI Annual Reporting Guideline.