The Bill amends the Freedom of Information Act 1982 (Vic) and the Victorian Inspectorate Act 2011 (Vic). The Bill is described as meant to "support and enhance Victoria's integrity regime, in particular by allowing for the appointment by the Governor in Council of Assistant Freedom of Information Commissioners under the FOI Act", accordingly
- providing greater guidance in relation to time limits and notification requirements by, and to, the FOI Commissioner; and
- facilitating the effective and informal resolution of reviews and complaints; and
- ensuring that many of the functions of the FOI Commissioner may be undertaken by, or delegated to, members of staff.
Clause 5 inserts a new subsection (4) into section 6C to require that the FOI Commissioner perform functions and exercise powers under any Acts with as little formality and technicality as possible. The intention is to promote a practical and efficient approach to the exercise of the FOI Commissioner's functions.
Clause 6 inserts new sections 6DA, 6DB and 6DC in the FOI Act, which deal with the appointment, functions, powers and responsibilities of Assistant Commissioners.
New section 6DA provides for the appointment of Assistant Commissioners. The Governor in Council may appoint an eligible person to be an Assistant Commissioner. (A person is eligible if they would be eligible for appointment as FOI Commissioner in accordance with section 6D.) The Governor in Council may appoint as many Assistant Commissioners as are required.
New section 6DB sets out the functions and powers of Assistant Commissioners. The functions of Assistant Commissioners will be to conduct, in accordance with Division 1 of Part VI, reviews of decisions by agencies on requests; to handle complaints in accordance with Part VIA; to assist the FOI Commissioner in management of the FOI Commissioner's office; and any other functions conferred under legislation. An Assistant Commissioner must have regard to the object of the FOI Act when performing any function or exercising any power under that Act, and must perform functions and exercise powers under any Acts with as little formality and technicality as possible.
New section 6DC provides that an Assistant Commissioner is responsible to the FOI Commissioner for the due performance of the Assistant Commissioner's functions and exercise of powers. However, the existence of this responsibility does not empower the FOI Commissioner to give an Assistant Commissioner a direction in relation to the conduct of a review under Division 1 of Part VI or the handling of a complaint under Part VIA. Consequently, while an Assistant Commissioner will generally be responsible to the FOI Commissioner for the due performance of their functions and exercise of their powers, the FOI Commissioner will have no power to intervene in the conduct of specific reviews or the handling of specific complaints by an Assistant Commissioner.
Clause 7 amends sections 6E, 6F and 6G of the FOI Act so that provisions relating to terms and conditions of appointment, remuneration, and vacancy and resignation will apply to Assistant Commissioners as well as the Freedom of Information Commissioner. It also inserts a new section 6H(6) which provides for the removal from office of an Assistant Commissioner by the Governor in Council on the specified grounds of misconduct, neglect of duty, or inability to perform the duties of office, or on any other ground on which the Governor in Council is satisfied that the Assistant Commissioner is unfit to hold office. This process differs from that applying to the FOI Commissioner, who may only be removed from office by resolution of both Houses of Parliament.
Clause 8 inserts a new section 6I(1A) in the FOI Act which provides for the appointment by the Minister of an acting Assistant Commissioner. The Minister may appoint a person eligible to be appointed as an Assistant Commissioner as an acting Assistant Commissioner within 6 months after an Assistant Commissioner ceases to hold office; or during any or all periods when an Assistant Commissioner is absent from duty or from the State or for another reason cannot perform the functions of office, or when an Assistant Commissioner is acting as the Freedom of Information Commissioner. New section 6I(4A) provides that the Minister may remove an Assistant Commissioner at any time. Section 6I(5) is amended to provide that, where a person is acting as an Assistant Commissioner, that person has and may exercise all the powers of an Assistant Commissioner and must exercise all the functions of an Assistant Commissioner, and is entitled to be paid the remuneration of an Assistant Commissioner.
Clause 9 amends section 6K of the FOI Act to clarify that the FOI Commissioner may delegate to staff functions and powers relating to the conduct of a review and the handling of a complaint. For example, these could include attending offices and inspecting documents, conducting preliminary inquiries and referring matters back to an agency for reconsideration. However, the power to make a fresh decision under section 49P on an application for review or to make a recommendation under section 61L in relation to a complaint is not delegable under this section. Clause 9 also inserts a new section 6K(2) which provides that the FOI Commissioner may delegate to an Assistant Commissioner any of the Commissioner's functions and powers except the power to prepare a report under Part VII or the power of delegation conferred by the new section. Given that Assistant Commissioners will share the FOI Commissioner's functions in relation to reviews and complaints pursuant to section 6DB, it is expected that this delegation power would only be used in relation to the Freedom of Information Commissioner's other functions and powers under section 6C.
Clause 9 inserts a new section 6K(3) which provides that an Assistant Commissioner may delegate to a staff member any of the Assistant Commissioner's functions except the power to make a fresh decision under section 49P on a review, the power to make a recommendation under section 61L in relation to a complaint and the power of delegation itself.
Clause 10 inserts a new section 49B(3) which allows the FOI Commissioner to accept an application for review outside the statutory time limit if the Freedom of Information Commissioner is satisfied that the delay in making the application occurred as a result of an act or omission of the agency concerned.
Clause 11 inserts 2 new subsections into section 49D of the FOI Act which allow the FOI Commissioner, at any time during the conduct of a review, to provide a copy of the application for review to the affected agency. The Commissioner must obtain the applicant's consent to provide a copy of the application. The Commissioner may provide a copy of the application on request by the affected agency or on the Commissioner's own initiative.
Clause 12 substitutes new sections 49EA and 49F for current section 49F of the FOI Act. 49EA provides that, on receipt of an application for review, the FOI Commissioner must refer the application to an Assistant Commissioner or determine to deal with the application directly, without referral to an Assistant Commissioner. To facilitate timely and efficient referral of applications, section 49EA(2) provides that the FOI Commissioner is not required to consider the subject-matter of an application for review or to make preliminary inquiries or consult with the parties before making a referral. Substituted section 49F provides that an Assistant Commissioner or, where there has been no referral, the FOI Commissioner, may review a decision that is the subject of the application. In reviewing a decision, the Assistant Commissioner has all the functions, and may exercise all the powers, of the FOI Commissioner. Any reference to the FOI Commissioner in Part VI and Divisions 1 and 2 of Part VII includes a reference to the Assistant Commissioner. A decision of an Assistant Commissioner on review is taken to be a decision of the FOI Commissioner.
Clause 13 inserts new section 49H(4) which confirms that the FOI Commissioner may rely on the advice and assistance of a member of staff in making preliminary inquiries in relation to a review, conducting a review, and making a fresh decision on a review.
Clause 14 replaces sections 49L and 49M of the FOI Act with new sections 49L, 49M and 49MA, providing greater certainty in relation to timelines and notification requirements for agencies, applicants and the FOI Commissioner for review matters that have been referred back to the agency for reconsideration, or that have been reconsidered by the agency at its own initiative. New section 49L amends the original provision in a number of ways. Section 49L(3) establishes that the required period for completing a review under section 49J is suspended from the time the FOI Commissioner refers the matter back to the agency. If the agency makes a fresh decision, new section 49L(5) requires the agency to revoke the earlier decision, and, when notifying the applicant of the fresh decision, to also inform them of the requirements of subsections (6) and (7). Section 49L(6) requires the applicant to advise the FOI Commissioner in writing within 28 days of being notified by the agency of the fresh decision whether they agree with the decision. If the applicant fails to do so within the required period, section 49L(7) provides that they are taken to have agreed for the purposes of section 49MA(1). New section 49M amends the original provision in a number of ways. Section 49M(1) provides that an agency may notify the FOI Commissioner and applicant that the agency is reconsidering the matter that is the subject of the review at the agency's own initiative, and in doing so may make a fresh decision. Section 49M(2) provides that the agency has 45 days after the notification under section 49M(1) to make a fresh decision, unless the agency and FOI Commissioner agree in writing to another period. Section 49M(3) establishes that the required period for completing the review under section 49J is suspended from the time the agency notifies the FOI Commissioner that it is reconsidering a matter. Subsection 49M(4) requires the agency to notify the FOI Commissioner within 3 business days of making a fresh decision whether or not a fresh decision has been made. If the agency makes a fresh decision, subsection 49M(5) requires the agency to revoke the earlier decision and, when notifying the applicant of the fresh decision, to also inform them the requirements of subsections (6) and (7). Section 49M(6) requires the applicant to advise the FOI Commissioner in writing within 28 days of being notified by the agency of the fresh decision whether they agree with the decision. If the applicant fails to do so within the required period, section 49L(7) provides that they are taken to have agreed for the purposes of section 49MA(1). New section 49MA sets out the procedure after reconsideration under section 49L or 49M. Section 49MA(1) provides that, if the applicant agrees with a fresh decision made by an agency under section 49L or 49M, the FOI Commissioner must dismiss the review. Agreement with a fresh decision includes deemed agreement in accordance with section 49L(7) and 49M(7). Section 49MA(2) provides that, if the applicant does not agree with the fresh decision, the FOI Commissioner must complete the review on the basis of the fresh decision, and the required period for doing so under section 49J is 30 days from when the applicant advises the Commissioner that they do not agree with the fresh decision. Section 49MA(3) sets out the procedure to apply where the agency has not made a fresh decision under section 49L or 49M within the specified period. In these circumstances, the FOI Commissioner must recommence the review and complete it within 14 days after the earlier of the date on which the agency gives notice of the decision having been given, or the date on which that notice is required to be given.
Section 49MA(4) provides that, where the fresh decision of the agency is to refuse to grant access to a document on the basis that it is a Cabinet document or a document affecting national security, the Freedom of Information Commissioner cannot complete a review of that decision.
Clause 15 inserts a new section 49OA which provides clarification in relation to the operation of section 25A(5). Section 25A(5) provides that an agency may refuse a request for access to documents without identifying the documents if it is apparent from the description of the documents in the request that they are exempt documents, and it is apparent from the description that no obligation would arise to provide access to an edited copy of the document, or that the person making the request would not wish to have access to an edited copy. Section 25A(5) does not require the agency to identify the documents to which the request relates. New section 49OA(1) confirms that, in reviewing a decision of an agency to refuse a request under section 25A(5), the FOI Commissioner must determine whether to refuse the request under section 25A(5), without requesting the agency to search for or otherwise identify the documents to which the request relates; that is, only in reliance on the details provided in the request and any other information used by the agency to make the decision. Such information may include consultation with the person making the request regarding the option of having access to an edited copy of the requested document or documents. New section 49OA(2) provides that nothing in section 49OA(1) prevents the Commissioner exercising a power under section 63C (in relation to documents claimed by the relevant agency to be exempt) if the Commissioner determines that the request should not have been refused under section 25A(5).
Clause 16 amends section 49P of the FOI Act which deals with the FOI Commissioner's decision on a review. Section 49P(5) is amended to insert "if practicable" after "must". Current section 49P(5) requires that, where the FOI Commissioner makes a decision to disclose a document that is claimed to be exempt on the basis that it would unreasonably disclose information relating to the personal affairs of a person, or that it would disclose trade secrets or other business, commercial or financial matters the disclosure of which would disadvantage an undertaking, the FOI Commissioner must notify the affected person or undertaking of their right to make an application for review of the decision. The amendment qualifies the requirement so that the FOI Commissioner must only notify the person or undertaking where it is practicable to do so, bringing section 49P(5) into line with sections 33(3) and 53A(1) and (3) of the FOI Act. New section 49P(6) is inserted to provide that an Assistant Commissioner must notify the FOI Commissioner of the Assistant Commissioner's decision under section 49P.
Clause 17 repeals section 50(3E) of the FOI Act and inserts a new section 50(3FA). This provides that the agency must, as soon as practicable, notify the FOI Commissioner of an application for review of a decision by or relating to the Freedom of Information Commissioner to the Victorian Civil and Administrative Tribunal. This amends the current arrangement under existing section 50(3E) which requires the applicant to notify the FOI Commissioner of an application for review in relation to a failure of the Commissioner to make a decision within the relevant time. Clause 18 inserts a new section 61A(5) in the FOI Act which allows the FOI Commissioner to accept a complaint made outside the statutory time limit if the Commissioner is satisfied that the delay in making the complaint occurred as a result of an act or omission of the agency concerned.
Clause 19 inserts a new section 61AB in the FOI Act which provides that, on receipt of a complaint, the FOI Commissioner must refer the complaint to an Assistant Commissioner or determine to deal with the complaint directly, without referral to an Assistant Commissioner. To facilitate the timely and efficient referral of complaints, section 61AB(2) provides that the FOI Commissioner is not required to consider the subject-matter of a complaint or to make preliminary inquiries or consult with the parties before making a referral. New sections 61AB(3) and (4) provide that, when dealing with a complaint, the Assistant Commissioner has all the functions, and may exercise all the powers, of the FOI Commissioner. Any reference to the FOI Commissioner in Part VIA and Divisions 1 and 2 of Part VII includes a reference to the Assistant Commissioner. A recommendation of an Assistant Commissioner on a complaint is taken to be a recommendation of the FOI Commissioner.
Clause 20 inserts a new section 61I(5) in the FOI Act which confirms that the FOI Commissioner may rely on advice and assistance of a member of staff in conducting preliminary inquiries into a complaint, otherwise dealing with a complaint, and making recommendations under section 61L in relation to a complaint.
Clause 21 inserts new section 61L(9) in the FOI Act which provides that if the complaint is dealt with by the Assistant Commissioner, the Assistant Commissioner must notify the FOI Commissioner of any recommendations or referrals.
Clause 22 amends section 63C of the FOI Act to confirm that a member of staff of the FOI Commissioner, or contractor, agent or other person engaged by the FOI Commissioner, may inspect or make copies of documents where appropriate.
Clause 23 substitutes a new section 63D of the FOI Act and relates to use of documents produced to the FOI Commissioner in the course of a review or complaint that are claimed to be exempt. It replaces previous section 63D which applies to any document (exempt or otherwise) produced to the FOI Commissioner in a review or complaint. New sections 63D(2) and (3) provide that the Commissioner must do all things necessary to ensure that only a specified person has access to the document or its contents and that penalties apply to specified persons who intentionally or recklessly disclose the document other than in accordance with the FOI Act.
New section 63D(4) provides that a specified person may, to the extent practicable without disclosing exempt matter, disclose the nature of the document if to do so may assist in the resolution of the review or complaint, and the agency head or nominee gives prior written consent to the disclosure.
New sections 63D(5) and (6) allow the FOI Commissioner to copy exempt documents (unless they are Cabinet documents, documents affecting national security or law enforcement documents), to the extent necessary for the performance of the FOI Commissioner's functions. On completion of the review or complaint process, the FOI Commissioner is required to return to the agency any documents or copies of documents provided by the agency.
