Legal Insights

Freedom of Information Developments

By Melanie Olynyk, Katy Zhu, Maryam Popal, Laura Dargan

• 04 August 2022 • 8 min read
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Read on for the latest news on FOI for Victorian government agencies, where we discuss OVIC’s latest draft Guidelines and regulatory priorities, a recent VCAT case on voluminous requests, and a proposed legislative amendment of importance to councils.

Guidelines under the Freedom of Information Act 1982

The Office of the Victorian Information Commissioner (OVIC) is developing guidelines to the Freedom of Information Act 1982 (FOI Act) (FOI Guidelines).

It recently released draft Part III of the FOI Guidelines, which deals with the right of access, including the following:

  • Who may make an FOI request
  • What documents the FOI Act does not apply to
  • The requirements of a valid request
  • Transfers of requests to other agencies
  • Requests involving the use of computers
  • Timeframes for making decisions
  • Access charges
  • Substantial and unreasonable diversion of resources (s 25A(1))
  • Information to include in decisions.

The FOI Guidelines include reference to the FOI Professional Standards, OVIC practice notes, templates, and review decisions, VCAT cases, and examples.

The FOI Guidelines are being released in stages and are not yet finalised.

Amendment to s 125 of the LGA 2020

The Local Government Legislation Amendment (Rating and Other Matters) Bill 2022 (Bill) was introduced to Parliament to make a number of amendments to the Local Government Act 2020 (LGA 2020), which will affect the processing of FOI requests by councils.

Relevantly, clause 19 of the Bill amends the confidentiality provisions in s 125 of the LGA 2020. It does so by stating that documents containing certain types of confidential information are not exempt documents under s 38 of the FOI Act.

This applies to:

  • Council business information
  • security information
  • land use planning information
  • law enforcement information
  • legal privileged information
  • personal information
  • private commercial information
  • information prescribed as a (class of) non-exempt document.

What does this mean for councils?

If passed, the amendment has direct implications for councils handling FOI requests. Councils will no longer be able to automatically rely on the secrecy provision under s 38 of the FOI Act, in conjunction with s 125 of the LGA 2020, to prohibit disclosure of the information listed above.

This approach had been consistent with guidance provided by OVIC (see FOI and Section 125 of the Local Government Act 2020) and OVIC will presumably revoke this guidance should the amendment come into effect.

Despite this change, a document containing this information could still be an exempt document by virtue of another exemption, such as ss 33, 32 or 34 of the FOI Act.

If the amendment is made, councils will need to update any template decision letters which may have referred to s 38 of the FOI Act.

Issues may arise as to what affect this amendment has on existing FOI applications and decisions that may still be the subject of review rights. For example, if an application for review to VCAT had been made of a decision to refuse access under s 38 of the FOI Act in conjunction with s 125 of the LGA 2020 before the amendment was made but it had not yet been determined, it would seem that VCAT would apply the law as amended. This is consistent with the general proposition that VCAT applies the facts and law as they stand as at the date of its determination (see Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 and Forbes v Vukadinovic (2018) 236 LGERA 358), which has also been found to apply in the FOI context (see Thwaites v Department Justice (1993) 6 VAR 63). However, there is a contrary argument that can be made where a third party has accrued rights that would be affected by the change (see McNally and Waddell v Victoria Police [2021] VCAT 1164).

Recent VCAT Decision on Section 25A(6) notice of intention to refuse – take care!

There has been a recent VCAT decision that has implications for how agencies give notice of their intention to invoke s 25A(1) of the FOI Act.

This section enables an agency to refuse to grant access to documents, without having caused the processing of the request to have been undertaken, if satisfied that the work involved would substantially and unreasonably divert the agency’s resources from its other operations.

However, before doing this, an agency must first:

  • give the applicant a written notice stating an intention to refuse access, and identifying an officer of the agency with whom the applicant may consult with a view to making the request in a form that would remove the ground for refusal;
  • give the applicant a reasonable opportunity to so consult; and,
  • as far as is reasonably practicable, provide the applicant with any information that would assist the making of a request in such a form.

It was this third limb that was considered in Davis v Department of Health (Review and Regulation) [2022] VCAT 718. In that case, VCAT was not satisfied that the Department had provided sufficient information to assist the applicant to make a request in a form that could be processed.

The Department submitted that it had complied with the requirement by advising the applicant that it had estimated there were a large number of documents captured by the request and the work involved in assessing them would substantially and unreasonably divert the resources of the FOI Unit. It also said it had made some suggestions, such as removal of the reference to attachments and reports and a narrowing of the timeframe, and provided a suggested rewording of the request inviting alternative phrasing. The Department had also made some suggestions, such as removing the reference to attachments and reports, narrowing the timeframe, and provided a suggested rewording of the request.

The applicant contended that the FOI Unit knew the relevant number of meetings, agendas, minutes and reports, and the approximate length of the agendas and minutes. The Department appeared to contest this but VCAT found that the Department’s witness gave evidence that, at the time the s 25A(6) notice was given, the FOI Unit had been informed that the request covered 60 meetings with each meeting expected to have an agenda of one to two pages and minutes of two to six pages and there were a large number of attachments. As the FOI Unit had this information, VCAT found it would have been reasonably practicable to provide it to the applicant. Further, even if that information was not known, it would have been a relatively simple matter for it to be obtained.

VCAT also found the Department’s reasons should have provided more information than a mere assertion that the request covered a large number of documents and repeated the wording of s 25A(1) as that would have assisted the applicant.

As a result, VCAT found the Department did not comply with s 25A(6), and so was unable to refuse the request under s 25A(1). Further, as VCAT was standing in the shoes of the Department, it was also unable to refuse access under s 25A(1).

Despite this finding, VCAT went on to consider whether the request could be validly refused under s 25A(1). It found that, while the work involved in processing the request would substantially divert its resources from other operations, this was not unreasonable. In making this finding, VCAT said there was no direct evidence as to the adverse effect on the FOI Unit or on the processing of other FOI applications. So, despite the size of the request and its impact on resourcing, the request was manageable.

As a result, VCAT remitted the matter to the Department to make a new decision in accordance with law.

What does this mean for agencies?

This case has direct implications for all agencies when determining whether to rely on s 25A(1) of the FOI Act.

When providing the s 25A(6) notice to applicants, agencies must turn their mind to the question of what information can be provided to assist in refining the request. This may even involve an agency preparing a new document, such as an index of files or list of attachments.

OVIC to monitor compliance with the FOI Professional Standards

One of the four regulatory priorities identified by OVIC for 2022 – 25 is compliance with the FOI Professional Standards. The FOI Professional Standards were introduced in December 2019 to ensure the consistent administration of the FOI Act by agencies.

This regulatory priority recognises OVIC’s shift from the release of the Standards to ongoing and proactive monitoring and assurance of the Standards.

For more information, please contact a member of our FOI/Privacy Team

By Melanie Olynyk, Katy Zhu, Maryam Popal, Laura Dargan

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