If media reports and blog sites are anything to go by, government entities are increasingly seeking to charge requesters of official information. In this post I want explore where this trend has come from. In a future post, I would like to raise some questions about the circumstances in which such charges might be unlawful. If the anecdotal evidence is true, many government entities are probably exceeding their lawful powers when they require payment.
Section 15 of the Official Information Act provides that a government entity that is subject to the Act “may charge for the supply of official information under this Act”. That provision seems pretty clear on its face, but until recently it was hardly ever used. The flashpoint appears to have been Kelsey v Minister of Trade  NZHC 2497, the High Court case where Auckland Law Professor Jane Kelsey challenged the decision of Minister of Trade Tim Grosser to refuse to provide requested information about the Trans-Pacific Partnership Agreement. The refusal was based on the fact that MFAT staff would be required to review a very large number of documents to redact sensitive information before those documents could be provided to Professor Kelsey. The Minister considered that this level of effort was not warranted, and so refused to provide the documents on a blanket basis.
Professor Kelsey challenged the ability of the Minister to issue a blanket refusal of this nature. Her argument was, essentially, that the Official Information Act required the Minister (through his staff) to consider each piece of requested information individually. The Court found for Professor Kelsey, but in acknowledging the inconvenience this would cause MFAT staff the Court noted that a charge for the work involved in processing the request could be levied under section 15.
This throw-away comment seems to have captured the imagination of the public sector to a degree that is out of all proportion to its intended effect. Many government departments now purport to have policies in place to levy charges where they are required to provide information. The effect this has, in many cases, is that requests are withdrawn because the requester cannot afford to pay the relevant charges.
It is worth noting that the High Court in Professor Kelsey’s case said nothing about when it is fair and reasonable to levy charges under section 15 (although it was expressly noted that the charges must be reasonable). Professor Kelsey’s request was unusually large and therefore cumbersome – it hardly serves as a precedent for day-to-day requests that are part of the ongoing business of many government entities. What is reasonable will depend to a large extent on the individual circumstances – something which I am keen to explore in more detail in a later post.
For now, I want to conclude by noting that the case that brought the power to charge for OIA requests to public prominence does not do anything to justify their use in particular circumstances. Whether a defensible justification can be given is up to the government entity levying the charge, and they are subject to a high burden of proof. It is not clear to me at this stage whether that burden can always be discharged.