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Charges

A public sector agency may not impose a charge for an information privacy request but a private sector agency may impose a "reasonable charge". The Privacy Act is relatively strict on this issue because the right to access personal information under principle 6 is so fundamental to the operation of the rest of the Act.

The reason for the distinction between public and private sector agencies is that public sector agencies are expected to bear all the cost of complying with the legislation, whereas private sector agencies should be able to recoup some of the cost. 


What can an agency charge for?
A private sector agency may only charge for making information available. The Commissioner's view is that an information privacy request includes three distinct stages:
1. Identify and understand the information that falls or may fall within the request's terms
2. Make a decision on what of that information should be released.
3. Make that information available.

It is the Commissioner's view that the processing of requests - that is, stages one and two - is not chargeable; only actions taken in the third stage are chargeable. This could include employing a staff member to copy, compile, and send the information, along with the physical costs of doing so - the labour and materials involved.

What is a "reasonable" charge?
The Privacy Act does not state what a "reasonable" charge is. A useful starting point is the Ministry of Justice's Charging Guidelines for Official Information Act 1982 Requests (March 2002).  According to these guidelines, the first hour of labour should be free and an agency may charge $38 for every half hour after that. The first 20 pages of photocopying is free and the agency can charge 20c per page after that.  

These guidelines are relatively generous.  A reasonable charge in some circumstances will be considerably less than these guidelines permit.

If I think the charge is too much, what can I do about it?
You can complain to the Privacy Commissioner. Under section 78 of the Privacy Act, the Commissioner has the power to determine exactly what amount an agency is entitled to charge in respect of an information request.

Any determination made under this section is final and binding on both parties. It cannot be appealed to any court.

What if a private sector agency is required by law to give me access to certain information?
Private sector agencies should be aware of any statutory provisions that require particular categories of personal information be released without charge. If this is the case, then they cannot charge.  The Privacy Act's charging rules no longer apply. 

Are there any circumstances in which a public sector agency can charge?
Yes. Under section 36 of the Act, the Commissioner may authorise a public sector agency to charge for making information available. The public sector agency must satisfy the Commissioner that it would be commercially disadvantaged, in comparison with any competitor in the private sector, because it cannot charge.

Are the rules the same for health information?
Not quite. Public sector health agencies are still prohibited from making any charge in relation to health information requests. However, according to clause 6 of the Health Information Privacy Code, a private sector health agency may only charge for making certain types of information available.

Clause 6 (2) states that a private sector health agency may make a reasonable charge for:
1. making the same information available within 12 months of the first request; or
2. providing copies of x-rays, video recordings or CAT scan photographs.

Again, these charges relate only to making the information available.  The health agency cannot charge for the process of deciding whether to make the information available.


References

Privacy Act 1993
Section 35
Charges

Section 36
Commissioner may authorise public sector agency to charge

Case Notes:
Case Note 5169

 

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