Australia: Are you ready for the amended Freedom of Information Act in Victoria?

Last Updated: 4 September 2017
Article by Pip Mitchell

New timeframes, consultation periods, and regulator are now law under Victoria's FOI Act.

From 1 September 2017, Victorian Government agencies will need to comply with new requirements for processing freedom of information requests, under changes introduced by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) .

While some changes formalise current informal practices, the, along with the new regulator and timeframes, will require agencies to ensure their internal processes are up-to-date.

Why were the FOI amendments introduced?

The Amending Act is intended to deliver on the Victorian government's election promise to create a more transparent and accountable government. The provisions focus on making it quicker and easier for Victorians to access information and are generally (although not entirely) reflective of changes that have been implemented in the New South Wales, Queensland and Commonwealth jurisdictions.

The new Victorian Information Commissioner

One of the key focuses of the Amending Act is establishing the Office of the Victorian Information Commissioner. The Commissioner will be Victoria's primary regulator for the collection, use and sharing of information held by agencies. The Office will commence operations on 1 September 2017 and will be responsible for freedom of information, data protection and privacy.

The Commissioner has broader powers than the former FOI Commissioner, including the power to review decisions of Ministers and principal officers or those made on the ground of Cabinet exemption, and various powers to compel agencies to do certain things in the course of a review or an investigation.

New time-frames and extension option

The period for agencies to notify an applicant of its decision in relation to the applicant's request has been shortened from 45 days to 30 days after the request is received.

However, agencies have the opportunity to extend the 30 day time period:

  • by 30 days, up to a total of 60 days, if the agency has received the applicant's consent; or
  • by 15 days, up to a total of 45 days, without the applicant's consent if the documents requested are of the class that requires consultation under the Act.

Third party consultation is required under the Amending Act where a request has been made concerning documents of another state, an issue of national security, law enforcement documents, IBAC documents, issues of personal privacy, trade secrets or material obtained in confidence.

Consultation requirements for specific classes of documents

The Amending Act introduces a requirement for agencies to notify and seek the view of specified third parties when determining whether to disclose a document.

Section 29: a matter communicated by another State

Consult with:

  • another agency or Minister;
  • an agency of another Commonwealth or another State or Territory;
  • an authority of another country, Commonwealth or Territory.

Section 29A: an issue of national security

Consult with:

  • another agency or Minister;
  • an agency of another Commonwealth or another State or Territory;
  • an authority of another country, Commonwealth or Territory.

Section 31: law enforcement documents

Consult with:

  • another agency or Minister;
  • an agency of another Commonwealth or another State or Territory;
  • an authority of another country, Commonwealth or Territory.

Section 31A: IBAC documents

Consult with:

  • IBAC

Section 33: documents affecting personal privacy

Consult with:

  • the person who is the subject of that information or the next of kin

Section 34: documents relating to trade secrets, or of a business, commercial or financial nature

Consult with:

  • the person who is the subject of that information or the next of kin

Section 35: documents containing material obtained in confidence

Consult with:

  • the person or government that communicated the information;
  • the person or government on whose behalf the information was communicated.

This may appear to place an additional burden on government, but it is likely to create a more streamlined and efficient process. That's because while consultation was not required for most exemptions under the Act as previously in force, it was still performed as a matter of practice. A formal consultation process will give agencies more certainty when deciding on the appropriateness of disclosure.

It is also possible that the requirement to consult with other relevant agencies will lead to greater consistency in decision-making across agencies, and may act as an alternative to the current practice of interagency transferral of part or all of requests, as agencies will now be able to formally seek the view of other parties and obtain an extension of time in which to conduct that consultation.

Consultation is generally only required "if practicable". This phrase is not defined in the Amending Act and we will ultimately need to wait either for guidance from the Commissioner, or for the development of case law on the topic, to determine what it constitutes. However, if consultation is not practicable, that may lead agencies to err on the side of caution by not disclosing documents if consultation was not possible.

Ultimately, the effect of the expanded consultation requirement is that agencies must ensure they are aware, and have regard to, the interests of other relevant parties.

What are the implications for review of your agency's decisions?

The Amending Act grants the Commissioner greater powers in terms of reviewing agencies' and Ministers' decisions than were available to the FOI Commissioner.

Importantly, the Commissioner can review decisions made on the ground of Cabinet exemption. Previously, they could only be reviewed by VCAT.

Agencies should also be aware that if they refuse an FOI request without processing it, the Commissioner can require that they identify or process a "reasonable sample" of documents. The Commissioner is also able to:

  • issue a notice to produce or attend on a principal officer of an agency; and
  • require a further search, either when conducting a review or investigating a complaint, if the Commissioner believes that "an agency or Minister has failed to undertake an adequate search for documents".

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. Persons listed may not be admitted in all states and territories.

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