VCAT limits access charges on electronically stored “documents”

The VCAT has on 3 April 2020 made a landmark decision which will dramatically impact the way in which agencies impose access charges for electronically stored material. It has overturned the approach which agencies were required to take for over 35 years.

It ruled that where it comes to access charges for searching for:

• electronically stored emails or email chains;

• electronically stored “documents” (such as internal memoranda and file notes);

• electronically stored “documents” which have been saved or scanned in .pdf format,

agencies should charge 1.5 fee units per hour or part of an hour for searching rather than the reasonable costs imposed by an agency in providing a written document.

The issue in dispute was as to which Item in the Schedule to the Freedom of Information (Access Charges) 2014 should be imposed for such electronically stored material.

Item 1 of the Schedule applies to allow a charge of 1.5 fee units per hour or part of an hour for searching for documents, but only where Item 7 does not apply.

Item 7 of the Schedule allows a charge for the reasonable costs incurred by an agency in providing a written document, in effect, where s 19 of the Freedom of Information Act 1982 (Vic) (“FOI Act”) requires an agency to generate a written document from computer stored information. The language in Item 7 and s 19 mirror each other.

The VCAT accepted that information stored electronically, whether on one computer disc or multiple computer discs, and whether in one location or multiple different locations (including overseas), was not stored discretely. However, it concluded that the information which comprises these electronically stored emails and other “documents” were available in discrete form in documents of an agency. While something like an email may be stored as a collection of digits (1s and 0s) in a disc or discs, it remains available in discrete form once retrieved.

Accordingly, s 19 of the FOI Act does not apply and so the access charges under Item 7 in the Schedule (which has language mirroring s 19) do not apply. The correct charge for search time is under Item 1.

It would appear that the only time that Item 7 of the Schedule (and s 19 of the FOI Act) will have work to do is where:

information exists and is stored electronically, but is disparate not just in the manner in which it is stored, but also in the manner in which it can be retrieved (ie in separate records), such that the information is required to be collated or compiled into a single record, or
the document is no longer “available” because the agency no longer has the technology to retrieve it.

If you require advice on what this means for your agency, please do not hesitate to contact us.

Important Update

VCAT Rules on Access Charges

Issue 4 · 06 Apr 2020

In this issue