Legal Insights

Freedom of Information professional standards

By Caitlin James

• 13 June 2019 • 4 min read

The implementation of professional standards is a timely opportunity for agencies to review their current FOI processes and resources.

Part IB of the Freedom of Information Act 1982 (Vic) (FOI Act) provides the Information Commissioner with the power to develop professional standards relating to the conduct of agencies in performing functions under the FOI Act, and how agencies administer and operate the FOI Act.

The standards are a legislative instrument that outline obligations that agencies subject to the FOI Act must comply with. The standards are intended to clarify, build on and modernise how agencies administer the FOI Act.

Thirty-five draft standards, based on 11 themes, have been published on the Office of the Victorian Information Commissioner (OVIC) website.

Consultation on the draft standards has now closed and OVIC intends to publish the finalised standards by July 2019.

The implementation of these professional standards is a timely opportunity for agencies to review their current FOI processes and resources.

Highlighted below are a number of matters impacted by the draft standards, which agencies may want to revisit.

Part II information statements

Part II of the FOI Act requires agencies to publish certain information about the documents they hold. Some agencies do not have a compliant Part II information statement.

Draft standards 1.3 and 1.4 collectively require the principal officer to ensure information statements published in accordance with Part II of the FOI Act are clear and accessible to the public and are available on their agency’s internet site, where one exists.

If your agency would like help preparing, reviewing or updating your Part II information statement to ensure they are accurate, relevant and accessible, please get in touch.

Online payments

The FOI Act predates the use of many common modern technologies such as email and online payments.

Draft standard 2.2 provides that an agency requiring payment of an application fee must provide an electronic method for payment of that fee, unless the agency has received, on average, 12 or fewer requests per year in the preceding two years.

Draft standard 5.3 provides that an agency requiring payment of access charges or an access charges deposit must provide an electronic method for payment, unless the agency has received, on average, 12 or fewer requests per year in the preceding two years.

If your agency processes 12 or more requests on average per year over the last two years, and does not currently accept online payments, your agency should start considering how it can implement a credit or debit card, direct debit payment, bank transfer, EFTPOS payment or an online payment method, such as PayPal.

Timeframes

The FOI Act does not specify timeframes around how long an agency should take to communicate with an applicant upon receiving a request, nor how long an agency must provide an applicant before an agency may refuse an invalid request and finalise it.

Draft standards 3.1 to 3.3 prescribe time periods that provide an applicant with a reasonable opportunity to clarify a request and also set time periods in which the agency must acknowledge receipt of a request and provide notice to the applicant that the request is valid or invalid.

The FOI Act requires an agency to take all reasonable steps to notify an applicant of a decision as soon as practicable but no later than 30 days after the day on which a request is received, or if the 30 day period is extended or further extended under section 21(2) of the Act, the day after the extended period ends.

Draft standard 4.1 provides an agency will only be able to utilise an extension under section 21(2)(a) of the Act when third party consultation will occur, and draft standard 4.2 sets the minimum level of detail to be provided to the applicant in the notification.

Agencies should review their procedural guidance material to check for consistency with the proposed standards.

Other draft standards generally

Many other draft standards will require agencies to provide a greater level of detail in its communications with applicants, including, for example:

  • where the agency makes a decision that a document does not exist (6.1 and 6.2)
  • where a request would result in a substantial and unreasonable diversion of resources (7.1 to 7.3)
  • where the agency provides its notice of decision and reasons for the decision (9.1 to 9.3).

Draft standards 10.1 to 10.5 place greater obligations on the principal officer to ensure their agency and its officers have the necessary resources and training to administer the FOI Act.

Potential consequences for non-compliance

It is the responsibility of the principal officer of an agency to ensure any officer or employee of the agency concerned in the operation of the FOI Act, must comply with the standards. Non-compliance may result in the Information Commissioner:

  • receiving and dealing with a complaint under section 61A(1)(a) or 61A(ab) of the FOI Act, or
  • conducting an own motion investigation under section 61O(1) of the FOI Act.

Need advice on the draft professional standards or reviewing your current FOI processes?

Contact the Privacy team.

By Caitlin James

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