Introduction – Summary of changes
The Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic) has amended the Freedom of Information Act 1982 (Vic) (the FOI Act) making significant changes to the way in which Freedom of Information (FOI) matters are dealt with in Victoria. The FOI act is amended effective 1 September 2017.
Victorian Information Commissioner
A key change is the establishment of the Office of the Victorian Information Commissioner (OVIC), and the abolition of both the Freedom of Information Commissioner (FOI Commissioner ) and the Commissioner for Privacy and Data Collection (PDC Commissioner). The head of the new OVIC is the Information Commissioner (IC) who has the same powers and functions held by the FOI Commissioner and the PDC Commissioner. Mr Sven Bluemmel has been appointed as the IC. Deputy Commissioners have not yet been appointed.
Enforceable Professional Standards and OVIC investigations
The Act empowers the IC to set professional standards providing clear guidance on how the Act should be administered. These professional standards are binding on agencies and principal officers. Non-compliance with the professional guidelines may form the basis of a complaint to the IC.
The IC also has power to initiate an own motion review of the performance by agencies of their functions under the Act.
Previously, section 21 of the FOI Act required an agency to take all reasonable steps to notify an applicant of a decision on a request as soon as practicable, and no later than 45 days after the request was received. Now, section 21 requires an applicant to be notified of a decision not later than 30 days after the day on which the request was received by the agency.
The 30 day rule can be extended by 15 days if consultation is required as prescribed by various exemptions and also by 30 days with agreement with the applicant. The 30 day extension may be repeated any number of times but an extension cannot be made after the time limit for a notice of decision has expired.
Agencies should note that the deemed refusal provisions of s 53 remain unchanged so that failure to provide a decision within the time period may result in a direct review application to VCAT rather than to the IC.
The Act has also reduced the time for an agency to lodge an application to VCAT seeking a review of OVIC decisions from 60 days to 14 days.
Consultation and exemptions to the requirement
The following sections dealing with exempt documents have been amended to introduce mandatory consultation with and notification of affected persons. These sections are: s 29, s 29A, s 31, s 31A, s 33, s 34 and s 35. Section 33 relates to documents affecting personal privacy. Previously, this section required an agency to advise a person if the agency had decided to grant access to a document containing the personal affairs of that person and to notify them of their right to appeal. The FOI Act now adds the requirement to consult the person prior to making the decision and to seek their view as to whether they consent to the disclosure.
Section 34, documents relating to trade secrets, previously did require consultation with an undertaking to seek their views on whether the disclosure would expose them unreasonably to disadvantage and this requirement is maintained in the Act. However, a further section is added to allow for the provision of consent.
Similar consultation requirements have also been added to s 35, documents provided in confidence.
If the person does consent to the disclosure under sections 33, 34 or 35, they are prohibited from seeking a review of that decision at a later date. The requirements to notify of a decision remain in place, unless, of course, the person has consented to the disclosure.
Each of s 33 and s 35 make provision for removing the consultation requirement if: consultation would endanger life or physical safety, cause undue distress, be unreasonable in the circumstances; or be otherwise impracticable.
Powers to compel further search
It is also important to note that the Act has introduced section 49KA, which applies if the IC reasonably believes that an agency has failed to undertake an adequate search for documents related to a decision under review. During the review, the IC may give a notice to the agency to require the agency:
- in the case of a decision of an agency under section 25A of the Act, to process or identify a reasonable sample of the documents to which the request relates; or
- in any other case, to further search or to cause a further search to be undertaken for documents in the possession, custody or control of the agency.
The agency must comply with the IC’s requirement within the reasonable period stated in the notice, being not less than 10 business days.
New IBAC exemption
The Act also introduces a further exemption at section 31A relating to documents associated with an investigation by or notification to the Independent Broad-based Anti-corruption Commission (IBAC).
Organisations should update their FOI policies and procedures to comply with the amended legislation.