The Victorian Information Commissioner (Commissioner) recently released his report Impediments to Timely FOI and Information Release and commented on how the Freedom of Information Act 1982 (Vic) (FOI Act) played a part in some processing delays. The Commissioner went as far as to call for a comprehensive review of the FOI Act, including consideration of introducing new mechanisms for dealing with vexatious FOI applicants.

This report followed an earlier report published by the Commissioner on The State of Freedom of Information in Victoria: Five Years in Review 2014-2019. That report found that the number of decisions made on time had declined from 95% to 79%. As a result, the Commissioner investigated the causes of delay in FOI processing.

The Commissioner found three broad reasons for FOI processing delays:

  • more requests being made without any additional FOI resourcing
  • culture within an agency, including delays associated with the responsible minister formally noting a decision before it is made
  • various provisions in the FOI Act contributing to the delays.

On this latter point, the Commissioner recommended a wide-ranging review of the FOI Act to reflect modern public administration and the digital environment.

In particular, the following was mentioned as contributing to FOI processing delays:

Documents not subject to the FOI Act

Section 14(1)(b) of the FOI Act provides that a person is not entitled to obtain access under the FOI Act to a document that contains information available for purchase by the public. However, there is no provision excluding information that is available for free – which the Commissioner thought created a perverse incentive for agencies not to make information available for free.

Mandatory consultations

The Commissioner considered that the current consultation requirements in the FOI Act should be amended so that consultation is only required where the FOI decision maker considers that the party to be consulted ‘might reasonably wish to be expected to have concerns’ if the document were released (similar to the Commonwealth FOI legislation). Such an approach, in the Commissioner’s view, would remove the requirement to consult with public servants whose names only appear in documents in the ordinary course of their duties.

Statutory timeframes

The Commissioner noted how additional time was given under the Commonwealth FOI legislation to undertake consultation and where requests are complex or voluminous.

‘Vexatious’ applicants

It was noted:

  • that some agencies were spending a large amount of time dealing with FOI requests from a small number of applicants
  • the Victorian Ombudsman had recommended back in 2006 that VCAT be given the power to declare FOI applicants vexatious so that they could only make FOI requests with VCAT’s consent
  • the Commonwealth FOI legislation enabled the Australian Information Commissioner to declare an applicant vexatious.

Given this, it was thought a mechanism could be introduced for managing vexatious applicants, provided the decision to declare an applicant vexatious was made by someone independent from the agency (such as VCAT or the Commissioner).

Modernised legislation

The outdated nature of the FOI Act was considered by some to contribute to delayed decision making and information release. The Commissioner noted how the FOI Act had not been substantially reformed since it was enacted in 1982 and it could be modernised and harmonised with contemporary notions of government transparency and accountability.

While VCAT does not currently have the power to declare an FOI applicant vexatious for the purposes of the FOI Act, VCAT does have the power to grant an Extended Litigation Restraint Order against an applicant to a proceeding under the Vexatious Proceeding Act 2014 (Vic).

While not often done, an example of where VCAT exercised this power recently is Tofler v Kitson (Human Rights) [2021] VCAT 994. This meant Mr Kitson was not able, without leave (or consent) of VCAT, to commence or continue a proceeding against certain named persons and entities. VCAT’s President, Her Honour Justice Quigley, considered it appropriate to make such an order in this case given the applicant’s ‘unrelenting, vexatious and vindictive pattern of behaviour in respect of the institution of proceedings and applications in those proceedings, which are an abuse of process and an unacceptable burden on the [other parties], their legal advisers and the resources of the Tribunal’.