Victorian overhaul of FOI could make life easier for applicants - and agencies

By Sally Sheppard and Elsie Loh.

Key Points:
FOI applications could be easier to deal with, under FOI reforms in a new Bill.

There has been mounting concern about the operation of FOI laws across the country. In late September the then Attorney-General Philip Ruddock asked the Australian Law Reform Commission to review FOI laws practice across Australia (an Issues Paper is expected early next year). In the private sector, media entities concerned by the McKinnon decision and other developments commissioned an audit of free speech, which said:

"FOI performance is patchy across all governments. In some agencies applications are managed in a professional manner and decisions on access reflect the law, its spirit and intent. In other cases the FOI process involves delay, high cost, and what could be seen to be obstruction, often suggesting attempts to protect politically sensitive information."

In that context, the Victorian Government's reforms in the Freedom of Information Amendment Bill 2007 are to be welcomed not only by applicants, but by the agencies which must deal with FOI applications.

In this article we'll outline the main changes contained in the Bill.

Making application process easier

Currently it costs $22 to make an FOI application. The Bill abolishes application fees, and provides agencies with a discretion to waive some access charges covering the cost of processing the application.

Applicants will no longer be able to use the FOI process to access a document which is publicly available or contains information that can be found on an agency's website.

Perhaps the most significant reform, however, is that to the publication of information about the agency's functions. Ministers will have the power to set standards for the types of information about the agency's functions that must be published, preferably online.

This will allow more tailoring of the level and types of information that must be published - less for smaller FOI agencies such as cemetery trusts, more for larger agencies and departments. The requirement to publish a separate, annual, Part 2 statement containing information about an agency's functions, structure and activities will also be scrapped.

Not only will this reform ease some of the compliance burden upon FOI agencies, it will (it is hoped) improve the level of understanding of FOI applicants about the machinery of government, leading to more focused FOI applications and less extraneous material requested.

Conclusive certificates abolished

Cabinet documents will still be exempt under section 28, but the Bill will abolish conclusive certificates, a move that it seems will also be taken at the Federal level.

Vexatious applicant regime

Although they are a minority of FOI applicants, those who don't act in good faith can be a significant drain on an agency's resources - and the patience of those who have to deal them.

The Bill will allow agencies and ministers to apply to VCAT for a declaration that a person is a vexatious applicant where the person has made repeated applications which abuse rights of access, amendment or review. "Abuse" isn't defined but can include applications made for the purpose or having the effect of "obstructing or otherwise unreasonably interfering with the operations of the agency or agencies" (proposed new section 61C).

This is a very serious step as a declaration would limit that person's right to make further applications - for example, he or she might need VCAT's permission to make an application, or other conditions on future applications might be imposed. Given those serious consequences, an application to declare someone a vexatious applicant will only proceed after the Attorney-General has approved it.

Personal information, third party consultation and consent

An FOI application can often involve documents containing information (for example, personal details or commercial information) about a third party. But what is "personal information"?

Currently the FOI uses one definition and the State's privacy laws another. Needless to say, this can be confusing. The Bill clarifies this by adopting the definition in the Information Privacy Act. It's interesting to note that the new Federal Government is also beginning to merge privacy and FOI law; according to its policy documents, the functions of privacy protection and FOI at the Federal level will be brought together in a new Information Commissioner (more information here).

The Bill tries to strike a balance between the rights of the applicant and the third party by:

• extending the required consultation period by another 30 days;
• allowing an agency, before deciding whether the disclosure of a document would involve the unreasonable disclosure of personal information, to notify the person concerned and seek that person's view as to whether disclosure of the document should occur; and
• providing that if a person consents to the release of personal information or a commercial decision, there is no right later to ask VCAT to prevent the release of the document.

Reviewing FOI decisions: Aligning Ombudsman scope and FOI

The Ombudsman can investigate FOI complaints arising from a "public statutory authority" - but are all FOI agencies "public statutory authorities"? This has been unclear - as a result, the Ombudsman has only been able to investigate some FOI complaints. The Bill fixes this to ensure that any FOI complaint can be investigated by the Ombudsman.

For further information, please contact Sally Sheppard.