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
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
Under the new regime, the FOI Commissioner will review
refusing to grant access;
deferring access to a document;
not to waive or reduce an application fee
refusing to amend documents containing personal
VCAT will review decisions:
made by a Minister or the principal officer of an agency;
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
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
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.
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.
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
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 bulletin.
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