Legislation has been introduced into Parliament to assist in the resourcing of the Office of the Freedom of Information (FOI) Commissioner – most notably, by providing for Assistant Commissioners who can also conduct reviews and handle complaints: refer to the Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014 (Bill).
The Bill creates the new position of Assistant Commissioner, whose role is to assist the FOI Commissioner in the management of the Office of the FOI Commissioner. Assistant Commissioners will have the same powers as the FOI Commissioner to conduct reviews of decisions by agencies on requests and handle complaints. The Coalition Government has announced that it will resource two new Assistant Commissioner positions. These Assistant Commissioners will be able to start as soon as the Act commences.
The Bill also amends the Freedom of Information Act 1982 (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 affected 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.
For example, the Bill confirms that an agency is able to notify the FOI Commissioner and applicant that it is reconsidering the matter at its own initiative and may make a fresh decision. The agency then has 45 days to make the fresh decision, during which time the review period is suspended. The applicant must advise the FOI Commissioner within 28 days whether they agree with the fresh decision. If they fail to do so, the applicant is taken to agree to the fresh decision. In circumstances where the agency is invited by the FOI Commissioner to reconsider the matter, the agency again has 45 days to make a fresh decision, and the applicant must advise the FOI Commissioner within 28 days whether they agree with the fresh decision, failing which they are taken to agree to it.
- 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 - at present, the applicant is required to notify the FOI Commissioner of an application for review in relation to a failure of the FOI Commissioner to make a decision within time, so this will now need to be done by an agency.
- 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.
- varies 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 Head gives prior written consent to disclosure.
When announcing the reforms, the Coalition Government also stated that additional staff will be seconded from the Department of Justice to assist the FOI Commissioner to develop an education program and materials that will further enhance training across the public sector. This has been long awaited and will better enable the FOI Commissioner to fulfil the function of promoting understanding by agencies of the FOI Act and providing advice, education and guidance to agencies.
The Bill also amends the Victorian Inspectorate Act 2011. The amendments are aimed at improving processes associated with obtaining evidence from persons in custody and setting specific penalties for a body corporate that is found guilty of an offence under this Act. They also clarify that a person who makes a complaint is able to withdraw the complaint at any time unless it is a protected disclosure complaint. The Victorian Inspectorate may continue to investigate on its own motion a complaint that is withdrawn.
The majority of the changes will come into operation on the day after the Act receives Royal Assent.