A NEW UMPIRE AND PROFESSIONAL STANDARDS FOR AGENCIES IN THE VICTORIAN FOI REGIME

The Baillieu government has introduced significant changes to the Victorian freedom of information (FOI) regime by way of the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012.

As the name suggests, the reforms introduce a new Freedom of Information Commissioner (FOI Commissioner) with the functions of reviewing some agencies' FOI decisions, receiving complaints regarding agencies' compliance with the FOI law and reporting to Parliament on the operation of the FOI law. The reforms also provide for the establishment of 'professional standards' for agencies to comply with when dealing with an FOI application.

At the time of writing this article, the reforms are not yet in force; unless introduced earlier, they will come into effect on 1 December 2012.

ROLE AND FUNCTIONS OF THE FOI COMMISSIONER

Review by the FOI Commissioner and VCAT

The FOI Commissioner will effectively replace the current internal review process undertaken by agencies and will be able to review the following decisions:

  • a decision of an agency refusing to grant access to a document, excluding Cabinet documents and documents regarding national security. (This does not include a decision to grant access to a document, and as a result an application to the FOI Commissioner for review of a decision under reverse FOI cannot be made);
  • a decision by an agency to defer access to a document;
  • a decision of an agency to not waive an application fee; and
  • a decision of an agency not to amend a document.

The Victorian Administrative Appeals Tribunal (VCAT) will continue to have a role conducting merits reviews and will review:

  • a decision of the principal officer of an agency or a Minister refusing to grant access to a document;
  • a decision of an agency refusing to grant access to a document on the basis that it is an exempt Cabinet Document or is a document containing national security information;
  • a decision of an agency to grant access to a document contrary to the views of a consulted business (commonly called reverse FOI applications); and
  • a decision regarding access charges.

In addition, VCAT may also review:

  • a decision of the FOI Commissioner refusing to grant access to a document;
  • a decision of the FOI Commissioner to defer access to a document; and
  • where the FOI Commissioner has not accepted an application for review, the original decision of the agency.

Importantly, an agency that is dissatisfied with a decision of the FOI Commissioner may also apply to VCAT for a review of the FOI Commissioner's decision. In addition, a business may appeal to VCAT a decision of the FOI Commissioner to grant access to a document contrary to the business' views.

Where the decision of an agency concerns documents that are considered exempt because they are Cabinet documents or documents regarding national security and the decision also concerns documents that are exempt for other reasons, an FOI applicant will be able to apply to VCAT for review in respect of the former documents and to the FOI Commissioner regarding the remaining documents.

The FOI Commissioner may dismiss an application for review if amongst other things the application is frivolous, vexatious, misconceived or the FOI Commissioner considers that it is not appropriate in the circumstances.

In terms of the FOI Commissioner's review procedure, the review must be completed in an informal manner and within 30 days from the date of receiving an application for review. Where the FOI Commissioner has not made a decision within this time, the FOI Commissioner will be taken to have affirmed the decision of the agency. Written submissions may be provided to the FOI Commissioner by each party and the FOI Commissioner will be bound by the rules of natural justice. Importantly, the relevant agency must assist the FOI Commissioner in the review and the FOI Commissioner may compel the production of documents.

Complaints function

The FOI Commissioner will be able to receive, conciliate and make recommendations in relation to complaints about an agency's dealings with an FOI application. The complaint may be about amongst other things, an agency's delays and decisions by a minister to release documents contrary to a third party's views. Further the FOI Commissioner may receive complaints about non-compliance with professional standards once they are established (as discussed below).

PROFESSIONAL STANDARDS

The responsible minister will be able to set binding professional standards in the regulations for agencies to follow. Principal officers of an agency must ensure that any officer or employee complies with the professional standards. As discussed above, complaints may be made to the FOI Commissioner regarding perceived breaches of the professional standards by agencies.

At the time of writing this article, no professional standards have been established. Nevertheless professional standards may capture such things as: criteria for clear identification of documents captured in a request by an agency, standards for clear communication between the agency and an FOI applicant and the setting of additional timelines for agencies dealing with an FOI request. At the outcome of a review of a complaint, the FOI Commissioner may make recommendations to an agency to improve its procedures.

As outlined above, the reforms have not yet come into force. However, due to the considerably different process now undertaken in terms of review and the need to comply with new professional standards, it will be important for agencies to use this time to train staff, establish new internal procedures and otherwise prepare for a new umpire in the FOI regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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