Legal Insights

COVID-19 Impacts on Freedom of Information (FOI)

By Melanie Olynyk & Caitlin James

• 07 April 2020 • 4 min read

The coronavirus (COVID-19) outbreak has had a significant impact on the general public, business and government. Here we comment on the impacts to Victorian Government agencies operating under the Freedom of Information Act 1982 (Vic) (FOI Act).

In response to COVID-19, many agencies have moved to remote working arrangements. The Office of the Victorian Information Commissioner (OVIC) has similarly activated its business continuity plan due to COVID-19 and staff are working remotely. OVIC has announced that it understands agencies may have reduced staffing impacting on their usual operating environment and that it may be difficult for some agencies to meet their obligations under the FOI Act, including the making of FOI decisions within statutory timeframes.

Despite this unprecedented situation, agencies’ obligations under the FOI Act and Freedom of Information Professional Standards (FOI Standards) remain.

Maddocks presented on the FOI Standards at our recent Government CPD series in February 2020. The key takeaways from that presentation were the new FOI:

  • timeframes
  • record keeping requirements
  • information requirements.

We also encouraged agencies to consider what they had done in order to achieve compliance with the FOI Standards, which could include:

  • briefing the agency head
  • updating internal procedures to accord with the Standards
  • updating record keeping practises
  • implementing written authorisations for FOI officers
  • training for FOI officers
  • training in FOI and record keeping for all employees
  • obtaining a redaction tool.

Agencies may now face a number of additional practical challenges when administering the FOI Act in light of the rapidly evolving COVID-19 situation.

With many agencies making the move to working remotely, some particular challenges in the current climate might be:

  • Searching for both hard copy and electronic documents.

For example, if no-one is in the ‘office’ a hard copy search may not be possible. In these circumstances, it may be necessary to seek an applicant’s consent to search only for electronic records.

  • Assisting and engaging with FOI applicants under section 17 of the FOI Act.

FOI Standard 2.4 requires an agency who receives a request that is not valid to take reasonable steps to notify the applicant of certain information within 21 days of receiving the request, such as why the request is not valid, and to provide reasonable assistance or advice to the applicant about how to make the request valid. However, if your agency has reduced staffing, for example, this may impact your agency’s ability to obtain information about requested documents in order to provide assistance to an applicant, or generally it may be more difficult to comply with the 21 day period in which to give notice. These are matters you may need to discuss with applicants.

  • A reduced processing capability.

For example, this may be where there are a large number of requests received with reduced staffing resources, or where requests involve a large number of documents or documents that are large in size. In particular, there may be challenges when electronically redacting documents due to reduced Wi-Fi speeds. Your agency may need to carefully consider the application of section 25A of the FOI Act and whether it may refuse to process the request on the grounds that it would involve a substantial and unreasonable diversion of your agency’s resources.

OVIC continues to receive new FOI review and complaint applications at this time. It has said it will actively progress review and complaint matters on hand, including attempts to informally resolve matters. OVIC has announced it will consider extending the time for agencies to provide exempt documents and the provision of written submissions to its office. If you consider an extension may be necessary, we encourage you to reach out to OVIC at an early stage. OVIC has asked that contact is made by email rather than post or phone at enquiries@ovic.vic.gov.au to ensure that your enquiry is dealt with as quickly as possible.

If you require any assistance with your FOI needs during this challenging time, please don’t hesitate to get in touch. Maddocks is operating business as usual and we continue to be available by telephone and email and can even hold virtual ‘face-to-face’ meetings via a number of platforms such as Microsoft Teams or Skype.

Maddocks has produced guides on legal issues raised by the coronavirus which may be of interest, and we encourage you to share these with colleagues who may also find them useful.

By Melanie Olynyk & Caitlin James

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