Time for a change: Eight ways to get ready for amendments to the FOI Act

The passing of the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 has brought about notable changes to Victoria’s Freedom of Information (FOI) regime for agencies and applicants.

Victoria's amendments are designed to promote a culture of open government through access to information and strengthen oversight of the administration of the FOI Act.
The changes come into effect on 1 September 2017.

Contact us for the complete suite of updated FOI templates, available for a fixed fee.

Here are eight things FOI agencies need to do to be ready for the changes.

1. Shorter time frames for processing FOI requests

Agencies and Ministers must make decisions on FOI requests within 30 days, instead of the previous 45 day period.
With the agreement of an applicant, this time frame can be extended by up to 30 days, with the possibility of additional extensions, so long as the extension is granted before the relevant period expires.
Decision makers are permitted an extension of up to 15 calendar days for requests that require consultation with specified third parties (under sections 29, 29A, 31, 31A, 33, 34 or 35) before a decision is made.

Action: Update correspondence templates, FOI manuals and other materials.  Importantly, consider ways of streamlining your document searches, FOI processing and other processes to make them as efficient as possible.

2. New Office of the Victorian Information Commissioner

On 1 September 2017, the new Office of the Victorian Information Commissioner (OVIC) will replace the existing Offices of the Freedom of Information Commissioner and the Commissioner for Data Protection and Privacy.
OVIC is an independent regulatory body.  It will comprise an Information Commissioner who will be assisted by two Deputy Commissioners responsible for FOI and privacy and data protection respectively.

Action: Watch out for updates and free training on the new OVIC to be offered by the current Office of the Freedom of Information Commissioner.

3. Power to review decisions of principal officers and Ministers 

OVIC has power to review FOI decisions made by principal officers and Ministers.
The amendments also provide that OVIC can accept a complaint about a decision made by a Minister that a document does not exist or cannot be located, or a failure by a Minister to comply with new Ministerial professional standards (see below).

Action: Update decision letter templates to advise that review of a decision to refuse a document, or a complaint about a ‘no documents’ decision made by a principal officer or a Minister, can be made to OVIC within 60 days after the date of the decision.

4. Power to review decisions refusing access to Cabinet documents 

OVIC has power to conduct reviews of decisions refusing access to documents exempted under the Cabinet documents exemption (section 28(1)).
Conclusive certificates signed by the Secretary to the Department of Premier and Cabinet and produced to establish that a document is subject to the Cabinet document exemption no longer apply.  In any case, such certificates were not commonly in use.

Action: Ensure decision letters address the relevant factors required in order to claim the Cabinet exemption, namely that the purpose or a substantial purpose for creating the document was for it to be submitted to Cabinet (or a sub-committee of Cabinet) for its consideration.  Care taken to establish the basis of a Cabinet exemption from the outset (including evidence of the purpose for which a document was created) will assist in any review of a decision to apply this exemption.

5. Increased powers in relation to searches for documents

Upon review of a decision, OVIC has power to require an agency or a Minister to conduct further searches for documents.  OVIC may specify methods for undertaking a further search for documents, for example, by directing an agency to use a specified key word search of its email system.
In cases where an agency or Minister refuses a request on the basis that the work involved in processing the request would substantially and unreasonably divert resources or interfere with the performance of the agency or the Minister’s functions, OVIC can require a further search or that a ‘reasonable sample’ of documents be produced.

Compliance with a request to conduct a further search or produce a reasonable sample must be undertaken within at least 10 business days, however, this period may be extended.  Within three days after the conclusion of this time frame, the agency or Minister must notify OVIC of the outcome of the further search or retrieval of sample documents.  OVIC has power to refer a complaint back to the agency or Minister to make a fresh decision.

Action: Consider making detailed notes of searches undertaken for documents, including locations searched and key word searches undertaken. This will assist you should a review application or complaint be made to OVIC.
If you receive a notice requiring a further search or a sample of documents, ensure you comply with the deadline provided in the notice.

6. New coercive and investigative powers

OVIC has power to conduct an own-motion investigation into an agency or principal officer's performance of functions or obligations under the FOI Act. As part of an investigation, the Information Commissioner can compel the production of documents and witnesses to attend before the Commissioner to be examined on oath or affirmation.
A person served with a notice to produce or attend will have the same protection and/or immunity as a witness in a Supreme Court proceeding and will have the right to legal representation if attending to answer questions.
Non-compliance with a notice to produce or attend to answer questions without a reasonable excuse may constitute an offence.

Action: If you receive a notice requiring you to produce documents or appear before the Commissioner to answer questions, ensure you comply with the requirements set out in the notice and, if required, seek clarification from OVIC.

7. Documents that may prejudice an IBAC investigation

Agencies and Ministers should be aware that documents in their possession, which would (or would be reasonably likely to) prejudice or adversely affect IBAC's investigations or informants, are exempt.

Action: If you identify such a document, notify IBAC that you have received a request for access to the document and seek IBAC's view as to whether the document should be disclosed.
Consider preparing a policy and provide training to decision makers to ensure compliance with this requirement.

8. Reduced time limit for agencies and Ministers to apply for review

While FOI applicants continue to have 60 days to lodge a VCAT review application for an OVIC decision, the time frame for an agency or Minister to lodge a VCAT review application is 14 days.

9. Professional standards for decision makers

OVIC will implement professional standards which will operate like a code of conduct to ensure FOI decision makers meet minimum standards for dealing with applicants, conducting document searches, processing requests and engaging in timely and good decision making. The standards are binding on agencies and principal officers.  Principal officers are also responsible for ensuring that all officers and employees are informed about the standards and for ensuring compliance by junior staff.
The standards do not automatically apply to staff in Ministerial offices, but the Premier has the power to adopt the standards (with modifications, if needed) and apply them to Ministers and their staff (Ministerial Standards).

Action:  You may receive an invitation from OVIC inviting your agency to participate in a consultation process for the development of the standards.
Provide training for your FOI decision makers and staff to ensure compliance with the new standards. 

Ensure your agency’s current practices comply with not only the legal requirements but also the 'spirit’ of the FOI Act.

This blog was prepared by Joanne Kummrow and Samudhya Jayasekara with the assistance of Milli Allan.

For further information on FOI matters contact:

Joanne Kummrow 
8684 0462

Andrew Field 
8684 0889

Michele Rowland
8684 0413

Kay Chan
8684 4020

Attorney-General v Honourable Mark Dreyfus: When can burdensome freedom of information requests be refused?

Freedom of information (FOI) schemes in both Victoria and the Commonwealth give public entities the power to refuse unreasonably burdensome FOI requests.  In the case of agencies, requests may be refused where they would substantially and unreasonably divert the resources of the agency from its other operations. In the case of ministers, requests may be refused where they would substantially and unreasonably interfere with the performance of the minister's functions. 

A recent decision of the Full Court of the Federal Court, Attorney-General v Honourable Mark Dreyfus [2016]FCAFC 119, provides guidance as to when a request can be refused on this ground.

The decision, which was handed down on 6 September, concerned an FOI request made by the Hon Mark Dreyfus, a Member of the Commonwealth Parliament, seeking access to the diary entries of Commonwealth Attorney-General George Brandis.  Mr Dreyfus requested entries for the period 18 September 2013 to 12 May 2014 in a 'weekly agenda' format.  The diary entries were generally brief, containing the time of the meeting, the person to be met and occasionally a short description. 

The Attorney-General initially refused the request, on the basis that processing it would 'substantially and unreasonably interfere' with the performance of his functions.  The Attorney-General estimated that the process would take around 630 hours, including time spent gathering information that could not be gleaned from the entries alone and consulting with third parties mentioned in the entries.

The Administrative Appeals Tribunal set aside the Attorney-General's decision, a finding that the Full Court of the Federal Court upheld. 

The Federal Court's decision turned on the following two questions:

• When would the Attorney-General be required to consider extrinsic documents in determining whether a claimed diary entry could be released?
•  When would the Attorney-General be required consult with third parties to determine whether such a party might wish to claim an exemption?

In relation to both questions, the Court held that the Attorney-General would only be required to consider extrinsic documents or consult with third parties if it appeared from the face of the entries that this would be necessary.  The Court found that most of the entries did not require this.  The request could not, therefore, be rejected for substantial and unreasonable interference with the performance of the Attorney-General functions. 

The Federal Court's judgment is consistent with past determinations on similar issues.  In Fletcher and Prime Minister of Australia[2013] AICmr 11 (22 February 2013),  for example, the Australian Information Commissioner upheld a request for access to cross-bench meeting entries in the Prime Minister's diary for the period of about one year.

The decision is a useful reminder for public entities to adopt a pragmatic approach when considering whether a FOI request would be a substantial and unreasonable diversion of resources, and to keep in mind that it will be necessary to prove, with persuasive evidence, to the Freedom of Information Commissioner, or VCAT, that any claim that the processing of a particular FOI request would constitute a substantial and unreasonable diversion of resources would in fact do so.

Penina Berkovic 

Acting Managing Principal Solicitor

Andrew Field 

Managing Principal Solicitor

Freedom of Information in Utopia

Many public servants would have tuned in to an episode of ABC's satirical comedy Utopia, in which the fictional Nation Building Authority muddles its way through an FOI request. FOI is an important part of government accountability and transparency.  The episode reminds us that responding to FOI requests can be complex.  This handy guide provides a quick reminder of the key steps to follow when processing an FOI request.  While FOI requests can be made to both agencies and Ministers, this post primarily deals with the former.

FOI in Victoria is regulated by the Freedom of Information Act 1982 (FOI Act), the Freedom of Information Regulations 2009 and the Freedom of Information (Access Charges) Regulations 2014. 

Practical assistance is also provided by the Attorney-General Guidelines on the Responsibilities and Obligations of Principal Officers and Agencies (December 2009).  Regard should also be had to the Attorney-General's Freedom of Information Professional Standards (2014).

Steps in processing an FOI request

1.      What are the criteria for a valid request?

The first step is to determine whether a request is valid under s 17 of the FOI Act.  A request will be valid if it is:

•         in writing;
•          provides information to enable identification of the documents; and
•          encloses the application fee, which may be waived or reduced if it would cause hardship to the applicant.

The application fee is 2 fee units, which currently totals $27.20. 

If a request is not valid, the agency has a duty to assist the applicant to make a valid request or direct a request to the appropriate agency (s 17(3)).

2.      How quickly must a request be processed?

Once an agency receives a valid FOI request, all reasonable steps must be taken to notify the applicant of the decision as soon as possible and no later than 45 calendar (not business) days after the request was received (s 21).  

If you work for an agency and receive an FOI request, but you are not an FOI officer, you should forward the request to the appropriate person in your agency.  You can find out who the FOI officer is by looking in your agency's 'Part II' statement.  This is a reference to Part II of the FOI Act, which requires that certain information is published and available to the public.  As an example, the Part II statement of the Department of Justice and Regulation is available online here. 

3.      What if a request is voluminous?

An agency may refuse access to documents if the request is so voluminous that processing it would divert the agency's resources substantially and unreasonably from its other operations (s 25A(1)(a)).  Before refusing a request for this reason, the agency must contact the applicant and offer to assist him or her to make the request in a form that would remove this ground for refusal (s 25A(6)).

4.      How is a request processed?

Once a request is assessed as valid, a thorough and diligent search must be conducted to locate all documents within the terms of the request.  This search can be conducted by the relevant business area of an agency under the supervision of the FOI officer.

'Document' includes a document in writing, as well as maps, plans, graphs, drawings, photographs, sound tracks, film, and any words, figures, letters or symbols which have meaning (s 5).

If the search does not return any relevant documents, the agency may determine that they do not possess any documents that fall within the terms of the request.

5.      What exemptions may apply to a document?

An applicant is not entitled to a document (or a part of a document) if an exemption applies to that document (or that part of a document).  Each document must be reviewed to determine if all or any part of a document may be exempt.  If an exemption applies, consideration must be given to whether the document can be released with exempt matter redacted (s 25).

Exemptions include:

·         Cabinet documents (s 28)

·         documents containing matter communicated by the Commonwealth or any State or Territory (s 29)

·         documents affecting national security, defence or international relations (s 29A)

·         documents of Court Services Victoria (s 29B)

·         internal working documents (s 30)

·         law enforcement documents (s 31)

·         documents affecting legal professional privilege (s 32)

·         documents affecting personal privacy (s 33)

·         commercial information of a third party or where the agency is engaged in trade and commerce (s 34)

·         documents containing material obtained in confidence (s 35)

·         disclosure contrary to the public interest (s 36)

·         certain documents arising out of companies and securities legislation (s 37)

·         documents to which secrecy provisions apply (s 38)

·         Council documents (s 38A)

Many of the above exemptions contain a public interest test, which is designed to balance competing factors in favour of either providing or preventing access to documents.

6.      What decisions may an agency make in respect of a document?

After any applicable exemptions have been identified, a decision must made as to whether to:

·         exempt a document in full;

·         release a document in part (with exempt material deleted); or

·         release a document in full.

Even if a document is to be released in part or in full, an agency may defer access if the document has been prepared for presentation to Parliament or a Council or for release to the press (s 24).

Notice of the decision must be provided in writing to an applicant (s 27) and must include:

·         the findings on any material questions of fact (eg, if an exemption applies), the material on which those findings was based, and the reason for the decision;

·         the name and designation of the person making the decision;

·         whether exempt information has been deleted from a document; and

·         information about the right to seek a review of the decision, including where to seek review and the time limit for seeking review.

7.      How can an FOI decision be reviewed?

After an agency has provided notice of a decision under the FOI Act to an applicant, he or she has 28 days to apply to the Freedom of Information Commissioner for review of the that decision (ss 49A, 49B).  However, the following decisions are not reviewable by the FOI Commissioner:

·         a decision made by the Minister or the principal officer of any agency (s 49A(3));

·         a decision refusing access to a document on the basis of the exemption under s 28, namely Cabinet documents (s 49A(4)); and

·         a decision refusing access to a document on the basis of the exemption under s 29A, namely documents affecting national security, defence or international relations (s 49A(4)).

A decision of the Commissioner is in turn reviewable by the Victorian Civil and Administrative Tribunal (ss 50(1)(b) and (c)).  An application to the VCAT must be made within 60 days of notice of the decision (s 52).

Applicants may also apply to VCAT for review of the following decisions:

·         a decision of the principal officer of an agency or a Minister refusing to grant access to a document in accordance with a request (s 50(1)(a));

·         a decision of an agency refusing to grant access to a document in accordance with a request, if the FOI Commissioner has made a determination under s 49G(1) not to accept an application for review or has dismissed a review (s 50(1)(d)).

·         a decision of an agency refusing to grant access to a document that is claimed to be exempt under s 28 (Cabinet documents) or s 29A (documents affecting national security, defence or international relations) (s 50(1)(e)).

·         a decision under s 24 by the principal officer of an agency or a Minister deferring the provision of access to a document (s 50(1)(f)).

·         a decision as to the amount of a charge that is required to be paid before access to a document is granted, if the FOI Commissioner has certified that the matter is one of the sufficient importance for VCAT to consider (s 50(1)(g)).

A decision of VCAT is also reviewable by the Supreme Court on an error of law.

Proposed Office of the Public Access Counsellor

The Government has also indicated its intention to create a new Office of the Public Access Counsellor, which will replace the Office of the FOI Commissioner.  The Special Minister of State has informed the Legislative Council that the Office will be established in 2016 and work has commenced to prepare the required legislation.  

The Office of the Public Access Counsellor will:

•  have the ability to review ministerial and departmental decisions to not release documents under the Cabinet-in-Confidence exemption;
• set FOI standards; and
• have a broader mandate to help Victorians understand how to access government information.

VGSO's FOI experts can help Victorian government bodies to respond to FOI requests.  We can also assist with reviews of an FOI decision before the FOI Commissioner, VCAT or the Supreme Court.

Janine Hebiton

Managing Principal Solicitor

8684 0450

janine.hebiton@vgso.vic.gov.au

Michele Rowland

Principal Solicitor

8684 0413

michele.rowland@vgso.vic.gov.au