Victorian water authorities are agencies for the purposes of the Freedom of Information Act 1982(Vic). Here are some recent developments in the FOI space.

Changes to the FOI Commissioner's Resourcing

New legislation just passed is the Freedom of Information and Victorian Inspectorate Acts Amendment Act 2014 – this Act is designed to assist in the resourcing of the Office of the FOI Commissioner – most notably, by providing for Assistant Commissioners who can also conduct reviews of decisions by agencies on requests and handle complaints.

The Act also amends the FOI Act to:

  • require the FOI Commissioner and Assistant Commissioners to perform functions and exercise powers with as little formality and technicality as possible
  • enable the FOI Commissioner to provide a copy of the application for review to the impacted agency at  any time during the conduct of a review, provided the consent of the applicant is obtained
  • clarify the time limits and notification requirements in relation to reviews and complaints
  • require the agency to notify the FOI Commissioner of any application for review of a decision by or relating to the FOI Commissioner to the Victorian Civil and Administrative Tribunal
  • enable reviews and complaints to be accepted 'out of time' if the FOI Commissioner is satisfied they are made out of time because of any act or omission of the agency concerned
  • vary the provisions relating to use of documents produced to the FOI Commissioner, so that specified persons may disclose the nature of the documents produced to the applicant or complainant if considered this may assist in the resolution of their review or complaint and the agency gives prior written consent to disclosure.

Changes to the VCAT Act – Implications for FOI Proceedings

The Victorian Civil and Administrative Tribunal Amendment Act 2014, passed earlier this year, also contains reforms relevant to FOI proceedings. Most significantly, the reforms will enable the Tribunal to:

  • Invite an agency to reconsider its decision at any time in a review proceeding. In response, the agency may affirm, vary, or set aside the decision and substitute a new decision for it. If the agency varies or makes a new decision, the proceeding is then taken to be one for review of the new decision. If an applicant withdraws their application after the agency reconsiders its decision, the Tribunal is precluded from making a costs order against them.
  • Make an order in relation to fees (including application and hearing fees), separate from its power to award costs.
  • Delegate certain functions of the Tribunal (such as making procedural orders or consent orders) to its registrars.

VCAT Proceedings – current trends

Maddocks regularly represents agencies in applications for review of FOI decisions at VCAT.

When an application for review is received by VCAT, the agency is required to lodge a 'Section 49 Statement' (as required by s49 of the Victorian Civil and Administrative Tribunal Act 1998) and attend a Directions Hearing. The purpose of the Directions Hearing is to make directions with respect to the future conduct of the proceeding. It does not deal with the substance of the application for review.

We have observed a trend towards listing matters for Compulsory Conference prior to a Hearing. The purpose of a Compulsory Conference is for the parties to attempt to resolve the matter without proceeding to a hearing or to at least narrow the issues in dispute. We have generally found these useful in bringing about a resolution of the matter.

Another recent trend we have observed has been in the number of applications brought by third parties. That is, an agency makes a decision to grant access to a document about a third party and that third party seeks a review of this decision (rather than the FOI applicant). This can occur where the document contains information of a business, commercial or financial nature, or personal affairs information, about that third party that it considers unreasonable to disclose (ss33-34).

Two recent cases that we have been involved with have concerned the disclosure of plans. In both cases, a resolution was achieved by having an inspection only of the documents, rather than providing copies. This outcome was only reached after involvement of the FOI applicant.

Where a third party seeks a review of a decision to release documents to an FOI applicant, it can be constructive to seek the view of all relevant parties in order to see whether a resolution can be reached at an early stage.