Electronic Frontiers Australia (EFA) PO Box 382 North Adelaide
Tel: 07 3424 0201
Fax: 07 3424 0241

11 April 2002

Ms Michelle Vaughan
FOI Coordinator
Office of Film and Literature Classification
Locked Bag 3

Dear Ms Vaughan

Subject: Freedom of Information Application, OFLC Ref: 01/9143

Thank you for your letter dated 25 March 2002 advising estimated charges of $931.07 in relation to the above application dated 27 February 2002.

With regard to my telephone discussion with you on 2 April, please be aware that at that time I had not checked the calculation of the charges, as referred to in (1) below.

(1) Basis of calculation of charges

We contend that the estimated charges may have been wrongly assessed and request a more detailed explanation of the estimate. Application of the prescribed fees ($15 ph/search and tagging, $20 ph/decision making) to the estimated times stated in your letter results in a total of $509.90 (not $931.07) as set out below:

Search and Retrieval Time: 13.5 hours at $15 ph
Decision Making Time: 15 hours at $20 ph
Copies of documents: 10 cents x 74 documents
$202.50 (18 files x 45 min)
$    7.40
$      ?

Would you please provide details of estimated charges in the above format (i.e. in accord with the Attorney-General's Department FOI Memorandum No 29 to agencies <http://www.law.gov.au/foi/memos/memo29.html>) to show why the estimate of $931.07 is some $400 higher than the content of your letter indicates should be the case, and/or provide a corrected estimate.

(2) Request for non-imposition or reduction in charges

We contend that the charges should not be imposed, or should be reduced, because the "giving of access to the document[s] in question is in the general public interest or in the interest of a substantial section of the public" (Section 29(5)(b) of the FOI Act).

Further detail regarding the reasons for our contention is provided below. The numbered paragraphs below are quoted from FOI Memorandum No. 29 issued by the Attorney-General's Department which we have used as an aid to addressing relevant matters concerning non-imposition or reduction of charges.

86. In recommending a power to remit charges on the grounds of public interest, the 1978 Senate Committee said: "We also believe that there should be explicit provision, as in the United States, for reduction or waiver by agencies or ministers when the provision of information 'can be considered as primarily benefiting the general public' rather than being for the benefit or gain of the individual applicant. It is likely to have particular utility for community interest organisations and groups, working in such areas as environment protection, education, social welfare and civil liberties, who operate on shoestring budgets yet are intimately concerned with the kind of policy formulation in the public interest that it is one of the basic objectives of any freedom of information to promote." (paragraph 11.42 of the Committee's Report)

88. In this context [of fees and charges] 'in the public interest' is used in the sense of something which is of benefit to the public.

89. The first question to consider is, therefore, whether the benefit from the release of the information contained in the particular documents will flow to the public at large, or a substantial section of the public, as well as to the specific individual or organisation who or which requested the documents concerned (the question of end use). If no benefit will flow to the public from access, because the information will not be made publicly available, the public interest reason for remission, or reduction or non-imposition, has not been satisfied.

Some, probably all, of the information released to EFA will be made available to the public at large on EFA's web site. We cannot advise how much of it will be placed on the web site until we see what is contained in the documents. It may not be appropriate to publish some of the information, however, we anticipate that the vast majority of documents will contain information that it is in the public interest/of benefit to the public to make available to the public. EFA's web site has an FOI section containing information previously released under FOI by the Australian Broadcasting Authority, the Qld Department of Fair Trading (and censorship) and the Commonwealth Attorney-General's Department.

90. The second question is whether, in the light of all the circumstances, making the specific information in the particular documents more widely available would be 'in the public interest' in the above sense (para.88). This requires a consideration of both the contents of the documents as a whole and of the context of their release.

91. ...if the giving of access to the specific documents would contribute valuable material to public debate on an issue, doing so will be in the public interest. However, lack of public discussion before release need not mean that the giving of access is not in the public interest. Giving access to information which would benefit the general public, or a substantial section of the public, if it were made more widely known is in the public interest whether or not there is an existing debate ...

92. A decision to remit a fee, or reduce or not to impose a charge, on public interest grounds is a decision that there is at least some public benefit from giving access to the documents as a whole. That does not prevent an agency later concluding that the public interest in disclosure of some or all documents is on balance outweighed by other public interest considerations against disclosure embodied in specific exemptions. If an agency concludes that giving access would be in the public interest in a particular case, it should grant full remission of fees or not impose any charges in the absence of any other relevant countervailing factor. Where there are other relevant countervailing factors they should be weighed against the public interest in giving access, and this may (but need not) result in partial or no remission or reduction (see para.81 above).

It is in the public interest that citizens have access to government held information that would enable them to engage in democratic debate relative to the merits or otherwise of classification decisions of the Classification Boards. This has long been an accepted fact in Australia in relation to classification of films, videos, computer games and publications. As the Commonwealth Attorney-General stated in a speech on 14 May 2001:

"As soon as a classification decision is made it is in the public domain and it is immediately open to question and scrutiny by the community."
("The Big C's - Censorship or Classification", Daryl Williams, Federal Attorney General, 14 May 2001)

However, that is not a fact in relation to classification of Internet content.

In relation to Item 1 and 2 documents, we expect these will provide the same information about classification of Internet content as is made publicly available free of charge by the OFLC in its online database regarding films, videos, computer games and publications. It remains unclear to EFA why details of Internet content classifications are not available in the database. The Director of the OFLC advised in a letter to EFA dated 27 September 2000 that:

"The OFLC database currently records classification decisions for which a valid application has been received under the Classification...Act. The OFLC makes this service available as part of our commitment to provide free information to the community about our classification decisions. With regard to decisions under the Online Services Act, OFLC is currently negotiating a series of protocols with the ABA. When these are in place, I am sure that EFA will be satisfied with the information available online".

We consider that the failure of the OFLC and/or the ABA to organise this, despite the passing of eighteen months, should not result in citizens being charged for access to information about classification decisions made by the Classification Boards about Internet content.

The potential for the Broadcasting Services Amendment (Online Services) Bill to lead to a classification/censorship system of secrecy which has no public review was raised and discussed during Senate Committee of the Whole consideration of the Bill (Hansard 25 May 1999). It is clear that the Parliament, and the Minister, had no intention of preventing the general community from being aware of details/descriptions of classified material and recognised the public interest in the general community having such information.

In relation to Item 2 and 3 documents, there has been substantial public debate over the past two years concerning the application of guidelines designed for cinema movies to text and static images on the Internet and this public debate continues as State governments introduce Internet censorship laws (see, for a recent example, the transcripts of the public hearings conducted by the NSW Standing Committee on Social Issues on 5 and 6 March 2002). A significant proportion of this public debate concerns the difficulties of understanding how the guidelines are being, or should be, applied. According to Dr Jeffrey Brand even the ABA claims to have difficulty in this regard. Dr Brand states in his recent report on the Guidelines review that:

"The ABA claims that in its experience with the classification of online material, as administrator of the co-regulatory scheme for Internet content under Schedule 5 of the Broadcasting Services Act 1992, it finds difficulty using Film Guidelines for the Classification of online textual material."

Public availability of classification decision reports concerning online material will assist Internet publishers in understanding how the guidelines are applied and hence assist their ability to assess their own content and comply with the Commonwealth and State laws.

In addition, we anticipate the documents will be a valuable contribution to the public debate on the merits of the Commonwealth's Internet censorship law, which is subject to review before 1 January 2003, and the appropriateness of the guidelines to online content. Among other things, it appears the ABA's difficulties with application of the guidelines may be resulting in ABA expenditure of public funds on OFLC classification fees for online material that is PG and M, although such content is not even near the borderline of content subject to the relevant Commonwealth law. Granting of access to information about government agencies' expenditure of public funds is in the public interest. Moreover, if the ABA is so unsure of the borderline, it is clear that there is a high potential for Internet publishers to self-censor to a far greater extent than intended by the Parliament. In a democratic society such as Australia, freedom of expression is of itself in the public interest. The High Court has long held that laws must be reasonably and appropriately adapted to serve a legitimate end. Laws that in effect unduly restrict free speech (by causing unintended self-censorship) are not so adapted and access to information that facilitates and informs public debate on the need for law reform is obviously in the public interest.

In relation to Item 4 documents, we expect these documents will inform public debate concerning the reasons behind the lack of publicly available information on classification decisions about Internet content. This will assist citizens to seek reform of any government, ministerial or agency policy that results in the general public not being provided with the same information about classification of online material as offline material. It is clearly in the public interest for citizens have access to government held information that would enable them to engage in informed democratic debate regarding government policies and advocate in relation government policy formulation and/or reform.

In relation to Item 5 documents, it is in the public interest for information about the basis of classification fees for Internet content to be made publicly available. The giving of access to the documents would contribute valuable material to public debate on the issue of whether or not existing classification fees are appropriate for classification of Internet content. Moreover, Internet publishers who wish to be sure their content will not infringe State laws must pay a classification fee. Internet publishers convicted of infringing State and Territory laws are required to reimburse law enforcement authorities for the cost of classification by the OFLC. Such members of the public are unable to know whether the correct fee has been charged or a mistake has been when there is no information available in the public domain on the criteria or guidelines used by the OFLC to determine the appropriate classification fee.

In relation to the matter of ongoing public debate referred to above, we have not provided specific references evidencing this as we expect the management of the OFLC and members of the Classification Boards would already be well aware of this. However, a review of newspaper reports, public submissions to Parliamentary inquiries, questions raised in the Parliaments and so on would provide ample evidence that many organisations and individuals have been raising, discussing and debating these matters.

In summary, based on our expectation of the contents of the documents in question, we submit that access to all of the documents is in the general public interest or in the interest of a substantial section of the public.

96. So far as non-profit public interest groups are concerned, the mere fact that a group is claiming to act in the public interest is not conclusive. In general, it would be reasonable for a decision-maker to look to such a group to establish that its request is made for purposes other than the direct financial gain of its members or spouses. Examples include bodies operating in the fields of social welfare, environmental protection, civil liberties, law reform and the like. But the applicant should still establish that the giving of access is in the general public interest or in the interest of a substantial section of the public, in the sense discussed above (para.87-92). ...

Access to the documents in questions will not result in direct financial gain to EFA members or spouses. We cannot see any financial gain to anyone arising from the release of the documents. Further, any documents made available to EFA members will also be made available at the same time to the public at large. EFA members do not gain any special benefit from being a member because EFA's activities are conducted in a manner intended to benefit the many members of the public who support the promotion and protection of on-line civil liberties (whether or not they are in a position to contribute funding by way of membership fees). Further information about EFA is contained in Attachment 1 to this letter.

With a view to minimising delay in processing of this FOI application resulting from the postal system, if convenient to you, we would appreciate correspondence being faxed to EFA on (07) 3424 0241 or emailed to EFA's Executive Director at ... .

Yours sincerely

Irene Graham
Executive Director
Electronic Frontiers Australia Inc.

Encl. - cheque

Attachment 1

About EFA

Electronic Frontiers Australia Inc. is a non-profit national advocacy and educational organisation representing Internet users concerned with on-line freedoms and rights. EFA was formed eight years ago in January 1994 and is independent of government and commerce. EFA is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting civil liberties. EFA members come from all parts of Australia and from diverse backgrounds.

EFA's major goals are to protect and promote the civil liberties of users of computer based communications systems and of those affected by their use, to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech, and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

Each year EFA spokespersons respond to hundreds of media and public enquiries about Internet regulation.

EFA receives invitations from Parliamentary Committees inquiring into proposed legislation and recently this has resulted in EFA presenting oral testimony before:

EFA receives invitations to speak (and does so) at Australian and international conferences and seminars, as guest lecturers for university classes and to participate in government reference groups. For example, in 2001 EFA's Executive Director was an invited participant in the Federal Privacy Commissioner's National Privacy Principles Reference Group and the Research Reference Committee and in October 2000 was an invited speaker at the Federalism Forum convened by the Constitutional Centenary Foundation at Old Parliament House in Canberra to consider future directions for Australia's federal system.

These are just a few examples of the matters with which EFA has been involved with in recent years. Further examples are available in the listing at: <http://www.efa.org.au/AboutEFA/index.html#activities>

EFA is a trusted advocate for Internet user rights and online civil liberties and is a respected participant in the Australian Internet community.

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