Key features of the proposed Right to Information Act

• 1. A new ‘push’ model

  The Committee’s principal recommendation is that the current FOI Act be replaced with a newly titled Right to Information Act. The new Act would have a ‘push’ model under which the maximum amount of government-held information is proactively or informally released by agencies and ministers as a matter of course, unless disclosure would cause an identifiable harm that is not outweighed by the public interest in releasing the information. Push models have been adopted in the Commonwealth, Queensland and New South Wales jurisdictions. This would represent a significant shift from the current so-called ‘pull’ model.

• 2. A new definition of ‘information’

  The new scheme would include a ‘broad, technologically neutral’ new definition of ‘information’, replacing the use of the word ‘document’ in the existing legislation, to fully encompass the ways information is created, received, recorded, used, shared and stored in the digital age.

• 3. A new presumption in favour of information disclosure

  The ‘push’ model would be premised on a clear presumption in favour of disclosure of information, and more limited exceptions to that presumption. The making of a decision to refuse access to information would be governed by a three-part test that incorporates:

  1. a narrow and exhaustive list of legitimate protected interests which justify non-disclosure;
  2. the principle that access only be refused if disclosure would or would be likely to cause substantial harm to a protected interest; and
  3. a public interest override, whereby even if harm is likely to occur, access should still be granted if the benefits of disclosure outweigh the harm.
• 4. A new list of irrelevant considerations

  The new Act would also incorporate a list of irrelevant considerations that can never justify a refusal to disclosure information, including:

  • that the information might cause embarrassment to or a loss of confidence in the Government;
  • that the information might be misinterpreted or misunderstood by any person;
  • that access to the information could result in confusion or unnecessary debate; or
  • the seniority of the person who created the information.
• 5. New requirements for contracting with commercial entities

  The report also comments on contracts and commercial entities and recommends:

  • government agencies be required to include a clause in their procurement contracts with private organisations that prescribes the agreements as subject to public scrutiny;
  • where a minister or agency has engaged legal advisers, consultants and independent contractors, that they not be allowed to deny access to information that only shows they are performing a statutory function or delivering a governmental service; and
  • a more limited exemption for commercial-in-confidence information (currently s 34 of the FOI Act). While it may be justified to exempt certain information of this kind to protect commercial interests, the report recognises that this will not always be the case, and that private organisations should reasonably expect more public scrutiny over their dealings when they contract with government.

  All of the above represents a significant shift from the current FOI Act. However, certain elements of the current Act were recommended to be retained.

• 6. Retention of the exemption for Cabinet documents

  The report recommends the retention of the exemption for Cabinet documents, with the inclusion of a reference to the document having been prepared for the dominant purpose of a submission for consideration by Cabinet, or briefing a Minister in relation to issues to be considered by Cabinet. Interestingly, this issue was the subject of differing views amongst Committee members but there was a consensus that the Cabinet exemption not be used in an overly defensive fashion.

• 7. Retention of an exemption for internal information (although limited)

  A more limited exemption for internal information (currently s 30 of the FOI Act) is proposed, to be subject to the three-part test. This is likely to significantly reduce the circumstances in which the ‘internal working documents’ exemption can be relied on, noting also the list of irrelevant considerations mentioned above.

• 8. Retention of the exemption of documents subject to legal professional privilege

  The Committee agreed to retain the exemption for documents subject to legal professional privilege or client legal privilege (currently s 32 of the FOI Act), but under the new Act, it is recommended that agencies and ministers be required to consider waiving the privilege before refusing access on this ground.

• 9. Retention of the exception for voluminous requests

  The report recommends the abolition of the exception in s 25A(5) of the FOI Act for obviously exempt documents, which currently allows an agency or minister to refuse access to exempt documents without processing the request. However, it is proposed that the new Act would continue to include an exception for voluminous requests (currently s 25A(1)). This provision would contain a presumption in favour of processing a request, prescribe a statutory threshold definition of ‘substantial and unreasonable’ diversion or interference, prohibit reliance on onerous third party consultation as a basis for this exception but provide flexibility for agencies not to consult, and permit agencies to rely on the cumulative impact of processing multiple requests from the same applicant.

Proposals for proactive and informal release of information

The Committee’s proposed model would promote proactive and informal release of information via four mechanisms:

1. A mandatory proactive release mechanism requiring agencies and ministers to publish for free on their website, or otherwise release, information of significant public interest, as well as other information such as the kinds of information they hold, their organisational structure, their functions, and arrangements that facilitate public participation in development of their policies and exercise of their functions.
2. An additional proactive release mechanism supporting the proactive release of information generally, outside and in addition to information subject to the mandatory proactive release mechanism.
3. An informal release mechanism for the release of government-held information informally, outside the processes for responding to formal requests under FOI legislation.
4. A formal release mechanism with disclosure log requirements for a legally-enforceable mechanism for disclosure, with a requirement to publish a disclosure log recording and providing broader public access to information released in response to formal FOI requests.

The Committee recommends that the new Act include protections for agencies and ministers from civil and criminal liability where information is released in good faith under these mechanisms.

Proposals to increase efficiency

1. A revised repeated requests exception

A revised repeated requests exception is recommended, to allow the refusal of a repeated request where the agency has made a substantially identical request already, or where the applicant has previously been provided access to the information subject of the request. This would be a welcome change as the current provision (s 24A of the FOI Act) is very narrow and rarely applies.

2. A vexatious applicant provision

The new Act would also include a vexatious applicant provision empowering the Information Commissioner to declare a vexatious applicant, with a right of review to VCAT. Again, this would be a welcome addition, and bring the Victorian Information Commissioner’s powers into line with the Australian Information Commissioner’s powers.

3. A requirement to acknowledge receipt and content of a valid FOI request in writing within 5 business days

The Committee recommends that agencies and ministers be required to acknowledge receipt of a valid FOI request in writing within 5 business days and that the content of the written acknowledgement be prescribed, which would require internal processes to be updated. It also recommends that all statutory timeframes refer to business days rather than calendar days, which would be a welcome change.

4. Applying the same threshold for consultation across all third-party consultation provisions

The Committee recommends applying the same threshold for consultation across all third-party consultation provisions modelled on NSW legislation. This means an agency would need to take such steps (if any) as are reasonably practicable to consult with a person if it appears that the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns are reasonably expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. This would apply to third party personal information, business/commercial/professional/financial information, another government’s affairs and research information.

5. The removal of application fees and limitation of access charges

The Committee recommends that the new system have no application fees, and limited access charges for copying and delivering information, and that no access charges apply for requests for personal or health information.

Artificial Intelligence

A number of recommendations relate to the use of Artificial Intelligence (AI). It is proposed that the new scheme require agencies and ministers to:

• Record and publish information relating to the use of AI in automated decision-making; and
• Ensure mandatory proactive disclosure of the use of AI.

It is proposed that the use of AI be a factor in favour of disclosure of information. It is also recommended that the Government explore the feasibility of using technology including AI and automated decision-making to facilitate the efficient administration of the new FOI system.

Criminal offences

It is proposed that new criminal offence provisions be introduced for:

• Destroying, concealing or altering any record of government information for the purpose of preventing disclosure under FOI legislation;
• Wilfully obstructing access to information under FOI legislation, including directing or improperly influencing an FOI decision-maker to decide a request contrary to the requirements of the Act; and
• Wilfully obstructing, hindering or resisting the Information Commissioner, Public Access Deputy Commissioner or a member of staff of the Office of the Victorian Information Commissioner (modelled on the existing s 64F of the FOI Act).

First Nations recommendations

It is recommended that the Victorian Government, in consultation with Aboriginal Community Controlled Organisations, Aboriginal leaders, practitioners and community members, explore the feasibility of recognising and embedding Indigenous Data Sovereignty and Indigenous Data Governance principles into a whole-of-government information management framework and in the new legislation.

The Committee also recommends that the Victorian Government, as part of treaty negotiations, consider how structural barriers to Aboriginal people and Aboriginal Community Controlled Organisations accessing government-held information under the FOI scheme are best overcome.

Personal and health information

A number of recommendations are made in relation to personal and health information, in light of the fact that more than two thirds of the requests made under the Victorian FOI system come from individuals seeking information about themselves held by government agencies. The Committee proposes that a person’s access to their personal and health information be regulated under the new FOI scheme, and that it replace existing fragmented access arrangements under FOI, health and privacy legislation. The Committee proposes that the new scheme demand no access charges for personal or health information, and that it authorise and strongly encourage agencies to release personal and health information through the informal release mechanism.

Key takeaways

Government agencies and ministers with obligations under the FOI Act should monitor the progress of the Committee’s recommendations. If the Committee’s recommendations come to fruition in the passing of new FOI legislation, agencies would be required to significantly revise their FOI procedures and familiarise themselves with a new framework.

Whether new legislation is passed in the future is not certain. However, the Committee’s report raises important issues on which agencies and ministers can act now. For example, this means acting in accordance with the existing FOI Act’s stated purpose, which is to extend as far as possible the right of the community to access information in the possession of the Government, as well as acting in accordance with section 16 of the existing FOI Act, which requires ministers and agencies to administer the FOI Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.