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15 Mar 2012

Victoria gets new FOI Commissioner - and agencies some new FOI requirements

by Sally Sheppard

Victorian government agencies will need to review their processes for handling FOI applications, and understand the role of the new FOI Commissioner

Victoria's freedom of information (FOI) regime is undergoing some important changes, with the passage of the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2011. Many – but not all – agencies' FOI decisions will now be reviewable by a newly-created Freedom of Information Commissioner.

The Act doesn't change any of the substantive grounds for giving or refusing access to documents, although it will allow access to be provided by the internet. In the short-term there will be changes to the way decisions are reviewed, and complaints are handled. Down the track, new professional standards will be introduced for FOI officers.

A two-level review system for FOI decisions

Disappointed FOI applicants have previously gone to Victorian Civil and Administrative Appeals Tribunal (VCAT) for review of FOI decisions.

Under the new regime, the FOI Commissioner will review decisions:

  • refusing to grant access;
  • deferring access to a document;
  • not to waive or reduce an application fee
  • refusing to amend documents containing personal information.

VCAT will review decisions:

  • made by a Minister or the principal officer of an agency; or
  • relating to documents that are exempt either because they are Cabinet documents or contain national security information; or
  • about access charges; or
  • on appeal from, or referred by, the Commissioner.

The FOI Commissioner's review must be completed within 30 days of receiving the application for review, and in a timely and informal manner. If the review is not completed in that period, the FOI Commissioner is taken to have made a decision confirming the original decision. Importantly, the relevant agency must help the FOI Commissioner conduct the review of its own decision. If it doesn't, the FOI Commissioner will be able to compel production of documents.

The FOI Commissioner will also be able to dismiss applications if they are frivolous, vexatious, misconceived, lacking in substance or not made in good faith, or if the applicant has not co-operated; and can, after making preliminary inquiries and with the agreement of the applicant, refer the matter back to the agency for reconsideration.

Complaints about FOI processes

The FOI Commissioner will be able to hear complaints about the way in which an agency handled an FOI application, including decisions that a document does not exist or cannot be located. This includes various acts by Ministers: delay in dealing with a request, and decisions to defer access or disclose a document affecting personal privacy or relating to trade secrets.

Professional standards

The Minister will now be able to develop professional standards for how agencies perform FOI functions, and the FOI Act's operation and administration. These could include timeframes for decision-making, and how to help applicants and consult and communicate with them.

Any professional standards must be complied with by an agency's principal officer, and any officer or employee of the agency concerned in the operation of the FOI Act.

Now what?

The Act will be in force when proclaimed (which hasn't happened yet), or on 1 December 2012, if not proclaimed first. In the meantime, FOI officers should familiarise themselves with the new review processes and timeframes.

The more interesting question is what, if any, new obligations will be imposed by professional standards. Will they merely formalise current practice or introduce something going beyond it? So far, we have no details. Whatever their content, they will have to be complied with, so agencies will need at some point to ensure their own internal processes and manuals meet those new professional standards.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.