FOI report leads to changes in Victorian agencies

By Sally Sheppard.

Key Points:
The Ombudsman has recommended that Victorian departments change their internal processes in handling FOI requests, and get more guidance in best practice.

While many freedom of information requests are handled promptly by Victorian departments, there are still improvements that could be made.

That’s according to a report by the State Ombudsman released. The Ombudsman found that delay in processing FOI requests is still a major issue and is concerned about the lack of quality in reasons for decisions, the poor level of assistance to applicants and some internal practices.

To alleviate those difficulties for FOI officers and applicants alike, the report has made recommendations to amend legislation, and to improve processes and administration of FOI requests.

Rob Hulls, the Victorian Attorney-General, accepted the Ombudsman’s recommendations to improve the administrative processes, and "broadly" supported the proposed legislative changes - but as yet it’s unclear how many legislative changes will be made.

A greater role for the Department of Justice

The Ombudsman identified the Department of Justice as having a leadership role in the handling of FOI in Victoria. He recommended that it release practice notes which would:

• require agencies to contact applicants as soon as possible if there is uncertainty or ambiguity in a request;
• require agencies to help applicants refine voluminous requests;
• require agencies to tell an applicant if an exclusion applies;
• require agencies to tell an applicant if a document can’t be found or never existed;
• require agencies to provide applicants with a schedule or similar descriptive material if one is prepared in relation to those documents to which access is denied, as a part of the section 27 notice (but not so it would disclose any exempt information);
• allow agencies to prioritise multiple requests in conjunction with applicants; and
• set acceptable standards for decision letters, including standard form letters.

The Department would also be required to keep FOI agencies up-to-date on legislative or other changes affecting FOI, and help share experience and expertise around those agencies. It would also be required to review agencies’ compliance with their obligations under Part II of the FOI Act to publish information about the agency.

Refining the administration of FOI

The major recommendation under this heading would affect outsourcing arrangements. The Ombudsman suggested that when a function is outsourced, the contract between the agency and the supplier should allow the agency to access documents produced in the course of performing those functions.

Other recommendations include:

• tracking the level of officers involved and the time spent responding to FOI requests
• allowing agencies to give access to electronic versions of documents
• the formulation of either a guideline or an amendment to the Act to define the expression ‘routine request’, and clarify when charges can be waived
• VCAT to be able to declare a person a vexatious applicant, and thus permitting that person to make applications only with VCAT’s consent.

Amending the Acts

As noted above the Attorney-General said that he "broadly" supported the recommended legislative changes, but has not identified those which he specifically supported or, for that matter, rejected. Many of the changes would bring the FOI Act into line with the Commonwealth FOI Act or other legislation in its use and definition of terms, but others would go beyond this.

First, the Ombudsman has suggested allowing agencies to delete material that is not within the scope of the request where deletion is both practicable and not contrary to the applicant’s known wishes. This is a sensible suggestion and would expedite handling of FOI requests.

Time periods for handling requests could be extended, says the Ombudsman, where there is an exemption or a third party must be consulted.

Two suggestions would expand the role of the Ombudsman. First, where the decision is that no documents exist relevant to a request, a complaint could be made to the Ombudsman and there is no right of review.

Secondly, the Ombudsman suggests that his office’s functions should include enquiring into or investigating administrative actions taken in any agency within the meaning of the FOI Act and in connection with the FOI Act.

For further information, please contact Sally Sheppard.