The Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (the Act) came into force on 16 May 2017 with the aim of streamlining the oversight of Victoria's public sector information and data protection regimes. The Act makes important amendments to the Freedom of Information Act 1982, the Privacy and Data protection Act 2016.
These changes follow the recent changes to the health services complains regime in the new Health Complaints Act 2016 (Vic) which established the Health Complaints Commissioner and replaced the Health Services Commissioner who regulates the Health Records Act 2001 (Vic). Karen Cusack is the newly appointed Health Services Commissioner.
A new Office
The Act significantly restructures Victoria's Freedom of Information and Privacy and Data Protection laws. It has established the new Office of the Victorian Information Commissioner (OVIC), which will commence operations on 1 September 2017. OVIC will:
- Be the independent regulator in Victoria;
- Administer the functions of both the Freedom of Information Commissioner and the Commissioner for Privacy and Data Protection;
- Have responsibility for overseeing public sector privacy and data protection laws;
- Have enhanced powers and functions; and
- Provide the Victorian government with independent advice in these areas.
Special Minister of State Gavin Jennings says the amalgamation of these agencies will 'streamline FOI access and boost public sector transparency'.
Three new Commissioners
Three new positions have been created in a structure that will bring Victoria's information integrity system in line with the Commonwealth, New South Wales and Queensland frameworks. These are the Victorian Information Commissioner and two deputy commissioners:
- The Public Access Deputy Commissioner; and
- The Privacy and Data Protection Deputy Commissioner.
These roles have been advertised. The current Commissioner for Privacy and Data Protection, David Watts, has indicated that he does not intend to apply for the position of Information Commissioner. It remains to be seen who will be appointed to these new posts in September 2017.
New FOI procedures and timelines from 1 September 2017
As well as establishing the OVIC, the Act has made a number of changes to the procedures in the Victorian FOI scheme:
Shorter timeframes for processing FOI requests and lodging VCAT review
Agencies will be required to respond to FOI requests within a reduced timeframe of 30 days (down from 45).
This period may be extended by up to 30 days with the applicant's agreement.
The period may be further extended by up to 30 days by written agreement with the applicant before the relevant period expires.
If consultation with specified third parties is required prior to a decision being made (under ss 29, 29A, 31, 31A, 33, 34 or 35 of the Act) the extension may not exceed 15 days.
Reduced time limits for agencies and Ministers to apply for review. FOI applicants will still have 60 days to lodge a VCAT review application for a decision by the OVIC.
Ministers and agencies will now have only 14 days in which to lodge a VCAT review application.
Expanded powers to review decisions
The Act gives the OVIC the power to review FOI decisions made by Ministers, senior officers and cabinet as well as agencies. The OVIC is required to perform their powers and exercise their functions with as little formality and technicality as possible.
The Act also expands the types of FOI decisions the Information Commissioner can review. These include:
- Exemptions of Cabinet documents – certificates can no longer be issued under s28;
- Ministers refusing access to documents;
- Decisions of principal officers of agencies;
- Decisions made by a Minister that a document does not exist or cannot be located;
- A failure by a Minister to comply with the new Ministerial professional standards; and
- Complaints about how Ministers or principal officers handle FOI requests (previously handled by VCAT).
The Act says that the OVIC must perform powers and exercise functions with as little formality and technicality as possible and the Minister and agency must assist the OVIC in its reviews. FOI professional standards
The Act grants the Information Commissioner the power to issue FOI professional standards for agencies covered by the FOI Act. Previously these professional standards were issued by the Minister. These professional standards will operate like a code of conduct to ensure FOI decision makers meet certain minimum standards when dealing with applicants. Ministerial professional standards may also be adopted by the Premier.
Increased powers in relation to searches for documents
The Information Commissioner will be able to request a further search if it believes that an agency or Minister has failed to undertake an adequate search for documents. This may be made in the course of conducting a review, or investigating a complaint.
The Information Commissioner may require an agency/principal officer/Minister to conduct a further search for documents when a request is refused without having been processed. This search will involve identifying and processing a 'reasonable sample of documents'.
An agency or minister may refuse under s 35A of the FOI act if the work involved in processing the request would substantially and unreasonably divert an agency's resources from other operations or interfere with a Minister's functions.
New coercive and investigative powers
OVIC will have the ability to conduct own motion investigations (similar to but not as far reaching as those conducted by the Ombudsman and the Independent Broad based Anti corruption Commission (IBAC)).
During a review the Act permits the Information Commissioner to issue a notice to produce or attend on a Minister or principal officer on behalf of an agency.
Changes to the exemptions
There have been no substantive changes to the exemptions to the release of documents the subject of an FOI request, save for a new exemption in relation to IBAC investigations and additional obligations to consult under sections 29, 29A, 31, 33 and 35.
Exemption for documents that may prejudice IBAC investigations
Documents in the possession of agencies and Ministers which would (or would be reasonably likely to) prejudice or adversely affect IBAC's investigations or informants are now exempted from disclosure under s 31A of the Act.
What should you be doing to get ready for the changes?
- Agencies should update their FOI manuals, procedures, correspondence templates and other FOI materials to ensure the timeframes of FOI processing and document searches are updated to reflect this reduced timeframe for responding and that consultations occur if required.
- Decision letters should be updated to advise that review of a decision to refuse disclosure of a document or a complaint about such a decision can be made to OVIC within 60 days of the decision. Decision letters should also address the relevant factors required to claim a Cabinet exemption if necessary.
- If disclosure of a document that may prejudice an IBAC investigation is sought, you must notify IBAC that you have received a request for access and seek IBAC's view as to whether disclosure should be permitted.
- In response to the increased search powers held by OVIC, agencies should consider keeping detailed notes of searches undertaken for documents to assist with any reviews or complaints.