The Victorian Parliamentary Integrity and Oversight Committee report on its Inquiry into the operation of the Freedom of Information Act 1982 (Vic) comments
Victoria’s 40-year-old Freedom of Information (FOI) regime is struggling to meet the needs of our modern democracy. More than two-thirds of the requests made under our FOI system come from individuals seeking information about themselves held by nearly a thousand government agencies. They often wait many months, sometimes over a year, to get the information they need. Others seek information for transparency; they may want to understand the reasons for a policy decision or they may be concerned about integrity. Often the information they seek is declared exempt from disclosure under FOI and is either redacted or the entire document withheld. These days our FOI system too often fails to live up to the democratic ideals it was created to serve in the early years of the Cain Government. ...
With more than 48,000 requests for information annually, and often onerous requirements for agencies to consult third parties before releasing information, the sheer volume of the work is a significant burden for some public agencies. The lack of alternative pathways to obtain information is a major reason for the large number of requests that clog Victoria’s system.
The submissions and witnesses in public hearings also explained that many State agencies take a defensive approach to FOI, relying heavily on legal exemptions to release as little information as possible, contrary to the spirit of the Victorian FOI law. Delays, high fees, complexity, the poor state of public records, unhelpful culture, and refusals to release information are all cited as reasons for our current system’s reputation for being impenetrable. At least one witness used the term ‘Freedom from Information’ to describe Victoria’s regime. The best practices in access to information regimes in other parts of the world that the Committee identified included: maximum disclosure; proactive publication; commitment to open government; limited ‘exceptions’ to the presumption of disclosure (noting that the human right to information is not absolute); and processes to ensure fair, easy, timely and affordable access to information.
After comparing these best practices with Victoria’s current situation, the Committee recommended: • a new third-generation ‘push’ FOI Right to Information Act to replace the existing Victorian first-generation Act, which requires users to ‘pull’ information out of agencies through formal requests; • a new definition of information (rather than ‘documents’) suitable for the digital age; and • a new three-part test to apply to almost all exemptions to disclosure of information, underpinned by a presumption favouring disclosure of information: so that, if refusal of access to information is contemplated by an agency, it must demonstrate (1) that they are protecting a legitimate interest (e.g., privacy), (2) that disclosure will cause substantial harm to that interest, and (3) that this harm is not outweighed by any public interest in disclosure (known as the ‘public interest override’).
The Committee heard from experts recommending that a greater proportion of Cabinet documents should be proactively released, when in the public interest, as is now the case in New Zealand and Queensland. This proved to be one of the more difficult decisions faced by the Committee and the majority of members favoured retaining a similar Cabinet document exception to the current one, to preserve the Westminster principles of Cabinet confidentiality and solidarity. However, the Committee has narrowed the exemption, by requiring certain documents to be prepared for the dominant purpose of submission to Cabinet in order to be exempt. The Committee further emphasised that the Cabinet exemption should not be used in an overly defensive fashion and that agencies should use it as it was intended. Votes are recorded in the extract of proceedings in this report.
The model recommended by the Committee will ‘push’ information out to Victorians via four release mechanisms: a mandatory proactive-release mechanism; an additional proactive-release mechanism; an informal-release mechanism; and a formal-release mechanism. Under proactive-release mechanisms agencies will be required to publish a range of prescribed information, including information of significant public interest and will be supported to publish additional information. Much of the burden of formal FOI requests will be replaced by information pushed out proactively or informally released to individuals upon request. Simply legislating a new FOI system will not be sufficient to improve access to information in Victoria. The Committee heard repeatedly from experts that the Victorian public sector needs a new culture of transparency favouring the proactive release of information. This will require political leadership and will be enhanced by adequate resourcing, plain-language drafting of legislation, a whole-of-government information framework and greater regulatory powers for the Office of the Victorian Information Commissioner (OVIC).
The Committee recommends abolishing application fees and limiting access charges to the costs of copying and delivering information. These and other recommendations are designed to foster this new culture, but will require support at senior levels of all government departments and agencies to really bring about the needed change. Importantly, the Committee has also recommended that the Victorian public not be charged for accessing their personal and health information.
The Committee makes the following recommendations
Effectiveness of current policy model
RECOMMENDATION 1: That the Victorian Government introduce in the State a third-generation ‘push’ FOI system, which prioritises the proactive and informal release of government and public sector information.
RECOMMENDATION 2: That the Victorian Government seek to replace the Freedom of Information Act 1982 (Vic) with a third-generation ‘push’ FOI system Act (named the Right to Information Act), drafted in plain language and appropriate for the digital age.
RECOMMENDATION 3: That the new, third-generation ‘push’ FOI Act in Victoria include an objects or purposes section that: • identifies the key rationales for, and advantages of, the new Act in enhancing representative democracy, responsible government and public administration • recognises a person’s right to access public sector information, in particular about themselves • contains a presumption favouring maximum disclosure of information • prioritises proactive disclosure and informal information-release mechanisms over the formal information-release mechanism • requires restrictions on access to information to be narrowly drawn and interpreted • expresses Parliament’s intention that the new Act ‘facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information’ (Freedom of Information Act 1982 (Vic) s 3(2)).
RECOMMENDATION 4: That the new, third-generation ‘push’ FOI Act in Victoria include a broad, technologically neutral, definition of recorded ‘information’, rather than ‘document’, to encompass information in the digital age.
RECOMMENDATION 5: That official documents of ministers and former ministers be subject to the new third-generation ‘push’ FOI Act in Victoria.
RECOMMENDATION 6: That, under the new Victorian ‘push’ FOI Act, there be no formal right to request access to publicly available information.
RECOMMENDATION 7: That the new third-generation ‘push’ FOI Act in Victoria include, in accordance with best practice principles: • a Part entitled ‘Limited exceptions’, or similar, to encompass the limited reasons an agency or minister can refuse access to information; and • a clear presumption in favour of disclosure of information; and • a statement that Parliament intends the limited exceptions be interpreted narrowly.
RECOMMENDATION 8: That the new third-generation ‘push’ Act in Victoria include a three-part test in accordance with best practice principles that incorporates: • a list of legitimate protected interests; and • a substantial harm test; and • a public interest override.
RECOMMENDATION 9: That the new third-generation ‘push’ Act in Victoria incorporate a list of irrelevant considerations that can never justify a refusal to disclose information, including: • that disclosing the information might cause embarrassment to, or a loss of confidence in, the Government • that disclosing the information might be misinterpreted or misunderstood by any person • that access to the information could result in confusion or unnecessary debate • the seniority of the person who created the information.
RECOMMENDATION 10: That the Cabinet exemption provision in Victoria’s new, ‘push’ FOI Act include reference to a document having been prepared for the ‘dominant’ purpose of submission for consideration by Cabinet or prepared for the ‘dominant’ purpose of briefing a minister in relation to issues to be considered by Cabinet, whether or not these kinds of documents are actually submitted to Cabinet.
RECOMMENDATION 11: That there be a new limited internal information exception, subject to the recommended three-part test, to protect the integrity and effectiveness of internal decision-making processes.
RECOMMENDATION 12: That, in a new ‘push’ FOI Act in Victoria, there be equivalent provisions to the Freedom of Information Act 1982 (Vic) s 31(3)–(4), and that they not be subject to the three-part test.
RECOMMENDATION 13: That a provision be included in the new ‘push’ FOI Act for Victoria that adequately protects information created or held by Victoria Police for law-enforcement intelligence purposes.
RECOMMENDATION 14: That the new ‘push’ FOI Act in Victoria retain protections for the work of integrity agencies comparable to those presently found in the Freedom of Information Act 1982 (Vic) ss 6AA and 31A, Independent Broad‐based Anti‐corruption Act 2011 (Vic) s 194, Ombudsman Act 1973 (Vic) s 29A and Victorian Inspectorate Act 2011 (Vic) s 102.
RECOMMENDATION 15: That the Victorian Government seek to amend s 194 of the Independent Broad‐based Anti‐Corruption Act 2011 (Vic) to make clear that a Victoria Police investigation following a referral from the Independent Broad-based Anti- Corruption Commission (IBAC) is not an investigation ‘conducted under the IBAC Act’, so that documents collected by Victoria Police during such an investigation are not exempt under s 194 from the operation of the Freedom of Information Act 1982 (Vic).
RECOMMENDATION 16: That, under the new, third-generation ‘push’ FOI Act in Victoria, agencies and ministers must consider waiving legal professional privilege before refusing access to a document on this ground.
RECOMMENDATION 17: That, with regard to the limited exception for privacy in Victoria’s new third-generation ‘push’ FOI Act, • the three-part test apply to it • agencies use best practice ‘access-by-design’ tools to minimise the recording of personal information, and segregate it where necessary so information can more readily be disclosed while protecting privacy • the Office of the Victorian Information Commissioner issue tailored guidelines to help agencies using the three-part test more accurately and consistently determine whether, in a particular case, it is in the public interest to disclose personal information.
RECOMMENDATION 18: That a new ‘push’ FOI Act in Victoria use the definition of ‘personal information’ that is in the Privacy and Data Protection Act 2014 (Vic).
RECOMMENDATION 19: That, under the new ‘push’ FOI Act in Victoria, government agencies be required to include, in their procurement contracts with private organisations, a clause prescribing that these agreements are subject to public scrutiny.
RECOMMENDATION 20: That, when a minister or agency has engaged legal advisers, consultants and independent contractors, that the minister or agency is not allowed to deny access to information which merely demonstrates that the minister or agency is performing a statutory function or providing a governmental service.
RECOMMENDATION 21: That, as part of its consideration of law reforms relating to FOI in Victoria, the Victorian Government review the appropriateness of secrecy, and related, legislative provisions in the State, taking into account the 12 secrecy-offence principles identified in the Commonwealth Attorney-General’s Review of secrecy provisions: final report (2023).
3 Proactive and informal release of information
RECOMMENDATION 22: That legislation establishing Victoria’s new third-generation ‘push’ FOI system authorise the release of government-held information via the following four distinct mechanisms: (1) a mandatory proactive release mechanism (2) an additional proactive release mechanism (3) an informal release mechanism (4) a formal release mechanism with disclosure log requirements.
RECOMMENDATION 23: That legislation establishing Victoria’s new third-generation ‘push’ FOI system emphasise the primacy of the mandatory proactive, additional proactive and informal release mechanisms.
RECOMMENDATION 24: That legislation establishing Victoria’s new third-generation ‘push’ FOI system protect agencies and ministers (and their staff) from civil and criminal liability where information is released in good faith under the mandatory proactive, additional proactive, informal and formal release mechanisms.
RECOMMENDATION 25: That legislation establishing Victoria’s new third-generation ‘push’ FOI system protect the Information Commissioner and Public Access Deputy Commissioner from civil and criminal liability in respect of their performance of their statutory functions. Additionally, that these protections be extended to other persons employed by the regulator in respect of their performance of statutory functions on behalf of the Information Commissioner and Public Access Deputy Commissioner.
RECOMMENDATION 26: That legislation establishing the mandatory proactive release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to release information of significant public interest, as statutorily defined, as well as information about: • the kinds of information they hold, including what information they publish and are prepared to release (and whether it will be released free or for a fee) • their organisational structure • their functions and how their functions impact the public • arrangements that facilitate public participation in the development of their policies and exercise of their functions • their operations, strategic priorities, performance, financial affairs and related information published in tabled reports • the kinds of information they routinely release under the formal release mechanism • how the public can request information from them under the informal and formal release mechanisms • a register of information determined to be unsuitable for release under the additional proactive release mechanism • a register of information released under the informal and formal release mechanisms that has been considered for release to the broader public under the additional proactive release mechanism.
RECOMMENDATION 27: That legislation establishing the mandatory and additional proactive release mechanisms in Victoria’s new third-generation ‘push’ FOI system contain guiding principles on how agencies and ministers are expected to release information under the mechanisms. These principles should emphasise the responsibility of agencies and ministers to: • make the public aware of the availability of the information they hold • publish information in a timely manner and in a way that is practical, easily found, clear, capable of being understood and accessible.
RECOMMENDATION 28: That legislation establishing the mandatory proactive release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to: • publish free on their website, or other digital platform, information captured by the mechanism, except where the cost of publishing particular information online would be unreasonable • release information that cannot be published online due to the exception via an alternative free method that is practical, timely, and accessible. Where the exception applies, and the alternative methods available to provide public access to the information are not practical, timely or easily accessible, that agencies and ministers be empowered to charge reasonable costs associated with copying the information to comply with their obligations under the mechanism.
RECOMMENDATION 29: That legislation establishing the mandatory and additional proactive release mechanisms in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to take reasonable steps to provide an alternative method of access to information captured by the mechanism to persons who cannot access the information through the primary method due to disability, incarceration or other impediment to access.
RECOMMENDATION 30: That legislation establishing the additional proactive release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to review annually their approach to releasing information under the mechanism.
RECOMMENDATION 31: That legislation establishing the informal release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to: • provide reasonable advice and assistance to persons requesting information informally • release information under the mechanism without charge or for the lowest reasonable cost.
RECOMMENDATION 32: That legislation establishing the informal release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to: • consider releasing to the broader public, under the additional proactive release mechanism, information that has been released to requesters under the informal release mechanism • record all decisions to proactively release information which has been previously released under the informal release mechanism.
RECOMMENDATION 33: That legislation establishing the formal release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to consider whether formal requests can be dealt with under the informal release mechanism.
RECOMMENDATION 34: That legislation establishing the formal release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to: • record, in the form of a disclosure log, all information released under the formal release mechanism in response to FOI requests for non-personal information • update their disclosure log within 10 business days of releasing information to a requester under the formal release mechanism • publish their disclosure log on their website • release to the broader public all information recorded in their disclosure log, except: – requesters’ names – personal information or information that would unreasonably infringe personal privacy – confidential information or information communicated in confidence – information the publication of which is potentially defamatory – information prohibited under law from being disclosed or published – information that would cause substantial harm to an entity • consider releasing, under the additional proactive release mechanism, all information released to applicants in response to FOI requests for non-personal information, and record and publish all such decisions.
RECOMMENDATION 35: That legislation establishing Victoria’s new third-generation ‘push’ FOI system ensure the Information Commissioner is granted appropriate regulatory functions and powers to regulate agency and ministerial compliance with the requirements relating to the proactive and informal release mechanisms, including with respect to disclosure logs. This should include reporting, complaint-handling, investigation, examination and audit powers, as well as the ability to take enforceable action with respect to non-compliance.
RECOMMENDATION 36: That legislation establishing the formal release mechanism in Victoria’s new third-generation ‘push’ FOI system contain guiding principles on how agencies and ministers are expected to meet their obligations with respect to disclosure logs. These principles should: • emphasise the responsibility of agencies and ministers to ensure that their disclosure log is easy to find, search and use, and up-to-date and useful • set minimum requirements for the format of disclosure logs (for example, the type of document released and a description of its content) • permit agencies and ministers to provide additional contextual information with respect to a document recorded in a disclosure log, if they consider that it will help the public to understand it • set out how documents recorded in a disclosure log are to be released to the public (for example, online via an active electronic link in the log) • permit agencies and ministers to publish information in a different form and format from that provided to the requester if publishing it in its original format would be impractical or unreasonably burdensome.
RECOMMENDATION 37: That legislation establishing the formal release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to: • consider releasing to the broader public, under the additional proactive release mechanism, information which has previously been released to requesters under the formal release mechanism • record all decisions to proactively release information that has been previously released under the informal release mechanism.
RECOMMENDATION 38: That legislation establishing Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to develop, implement and publish a policy setting out, among other matters, their compliance with the guiding principles for the proactive release mechanisms; their processes for releasing information under the proactive, informal and formal release mechanisms; and their compliance with disclosure log requirements (including the kinds of information released under the informal and formal release mechanisms that will not be released to the broader public).
RECOMMENDATION 39: That legislation establishing Victoria’s new third-generation ‘push’ FOI system include agency and ministerial reporting requirements with respect to the cost of administering the FOI scheme; compliance with their obligations under the proactive release mechanisms; the public’s use of the informal release mechanisms; and the operational efficiency of those mechanisms.
RECOMMENDATION 40: That the Victorian Government develop and implement a whole-of-government information-management framework (‘framework’)—applicable to all agencies, ministers and government-held information subject to the FOI scheme— to support Victoria’s new third-generation ‘push’ FOI system. That the framework: • embed the purposes and benefits of a third-generation FOI system, including: – specifying, as a primary aim, improving the accountability and transparency of government and public participation in government affairs and decision-making – supporting the maximum disclosure of government-held information. • embedding e-governance and access-by-design principles into the information- and data-management processes and practices of all agencies and ministers • requiring agencies and ministers to record and publish information relating to the use of Artificial Intelligence and automated decision-making • requiring agencies and ministers to use technology to facilitate the efficient release of information under the FOI scheme.
RECOMMENDATION 41: That legislation establishing Victoria’s new third-generation ‘push’ FOI system give effect to the key recommendations of the Information and Privacy Commission New South Wales in its report Scan of the Artificial Intelligence regulatory landscape—information access and privacy with respect to the government’s use of Artificial Intelligence (AI), namely that government: • ensure mandatory proactive disclosure of the use of AI • ensure that open access information includes a statement of use, and a description of the operation of the AI • expand information access rights under government contracted services to AI used for government decision-making • include the use of AI as a factor in favour of disclosure of information.
RECOMMENDATION 42: That legislation establishing Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to: • maintain an Information Asset Register (IAR) • record in their IAR whether information can be, or has been, released to the public (and under which statutory release mechanism) • publish a public version of their IAR on their website.
RECOMMENDATION 43: That legislation establishing Victoria’s new third-generation ‘push’ FOI system ensure that information created by or in the possession of third-party government contractors and sub-contractors is accessible under the FOI scheme. This should be facilitated by giving agencies and ministers an immediate right of access to such information.
RECOMMENDATION 44: That legislation establishing Victoria’s new third-generation ‘push’ FOI system ensure that private entities that receive public funding to perform public functions or provide public services are subject to the FOI scheme.
RECOMMENDATION 45: That the Victorian Government explore the feasibility of implementing a mandatory training and education program for all public sector employees or FOI practitioners on Victoria’s new third-generation ‘push’ FOI system. 154 RECOMMENDATION 46: That the Victorian Government explore the feasibility of implementing a mandatory records-management and data-governance training and education program for all Victorian FOI practitioners.
RECOMMENDATION 47: That the Victorian Government, in consultation with the Public Record Office of Victoria (PROV), review record-keeping and information-management requirements under the Public Records Act 1973 (Vic), as well as the PROV’s compliance monitoring and enforcement powers under the Act, to ensure their adequacy to support Victoria’s new third-generation ‘push’ FOI system.
RECOMMENDATION 48: That legislation establishing Victoria’s new third-generation ‘push’ FOI system include specific reference to its interrelatedness with the Public Records Act 1973 (Vic), and require agency and ministerial compliance with record-keeping and information-management obligations under the Public Records Act 1973 (Vic).
RECOMMENDATION 49: That the Victorian Government explore the feasibility of implementing a centralised whole-of-government FOI portal, supported by new and emerging technology, to centralise the making of requests and the publication of agency and ministerial disclosure logs and Information Asset Registers under Victoria’s new third-generation ‘push’ FOI system, as well as information released through proactive and informal release mechanisms.
RECOMMENDATION 50: That the Victorian Government explore the feasibility of: • using technology, including Artificial Intelligence and automated decision-making, to facilitate the efficient administration of a third-generation FOI system. • using technology to assist with embedding access-by-design principles into information-management processes and practices across the public sector. In making this recommendation, the Committee recognises the importance of human supervision and oversight of any use of such technology, including the involvement of human decision-makers.
RECOMMENDATION 51: That the Victorian Government—in consultation with Aboriginal Community Controlled Organisations, Aboriginal leaders, practitioners and community Members (including the Yoorook Justice Commission, Victorian Aboriginal Community Controlled Health Organisation and Victorian Aboriginal Legal Service)— 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 legislation establishing Victoria’s new third-generation ‘push’ FOI system.
4 Efficiency
RECOMMENDATION 52: That legislation establishing Victoria’s new third-generation ‘push’ FOI system retain the existing functions and powers of the Information Commissioner and Public Access Deputy Commissioner in the Freedom of Information Act 1982 (Vic), including their powers to undertake reviews and handle complaints; provide advice, education and guidance to agencies, ministers and the public; issue professional standards; and conduct investigations. Additionally, the Committee recommends that their delegation powers be retained.
RECOMMENDATION 53: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system retain the following features of the Freedom of Information Act 1982 (Vic) with respect to requests: (i) legal persons can make a request, are not required to identify themselves (except when applying for personal or health information) or provide reasons for the request, and are not limited in their use of information released in response to a request (ii) there is no prescribed form for requests but they must be in writing and contain sufficient information to enable agencies and ministers to identify the information sought (iii) agencies and ministers must assist applicants to make a valid request, consult with them to make a request valid, and refer them to another agency or Minister that may hold the information requested (iv) agencies and ministers must decide FOI requests within 30 days, with extensions of time permitted in certain circumstances (v) agencies and ministers must take reasonable steps to provide access to information in a form or format requested by, or accessible to, an applicant, limited by clear and reasonable objections (for example, protection of the record, infringement of copyright and unreasonable interference with the operations of the agency).
RECOMMENDATION 54: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system empower the Information Commissioner and Public Access Deputy Commissioner to give an enforceable direction to an agency (or minister) to release information to an applicant in a particular format or by a particular method.
RECOMMENDATION 55: That legislation establishing Victoria’s new third-generation ‘push’ FOI system retain agency and ministerial reporting requirements in the Freedom of Information Act 1982 (Vic) subject to any needed amendments to remove outdated items.
RECOMMENDATION 56: That legislation establishing Victoria’s new third-generation ‘push’ FOI system simplify and streamline the definition of the entities subject to the FOI scheme.
RECOMMENDATION 57: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to assist a prospective applicant to make a written request if they are unable to do so due to disability or disadvantage (for example, illiteracy).
RECOMMENDATION 58: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system require agencies and ministers to acknowledge receipt of a valid FOI request in writing within five business days and that the content of the written acknowledgement be prescribed.
RECOMMENDATION 59: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system include a provision, modelled on s 44(2) of the Government Information (Public Access) Act 2009 (NSW), permitting partial transfer of a request to another agency or minister.
RECOMMENDATION 60: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system provide exceptions to the strict transfer and notification requirements under s 18 of the Freedom of Information Act 1982 (Vic) for agencies with complex organisational structures.
RECOMMENDATION 61: That all statutory time frames in legislation establishing the formal release mechanism in Victoria’s new third-generation ‘push’ FOI system refer to business days rather than calendar days.
RECOMMENDATION 62: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system include a repeat requests exception, modelled on s 60(1) of the Government Information (Public Access) Act 2009 (NSW), empowering an agency (or minister) to refuse to deal with a request (in whole or in part) if: (i) the agency decided a previous request for information substantially the same as the information sought in the request and there are no reasonable grounds for believing that the agency would make a different decision on the request to the previous decision; or (ii) the applicant has previously been provided with access to the information under the FOI scheme.
RECOMMENDATION 63: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system include a voluminous requests exception that: (i) empowers agencies (and ministers) to refuse to deal with a request if doing so would substantially and unreasonably divert an agency’s resources from the performance of its other operations, or substantially and unreasonably interfere with the performance of the minister’s functions, and there is no overriding public interest to process the request (ii) contains a presumption in favour of processing the request (iii) prescribes the factors that agencies (and ministers) must take into account in determining whether the exception applies, by codifying the Information Commissioner’s and the Victorian Civil and Administrative Tribunal’s existing guidance on determining what is ‘substantial’ and ‘unreasonable’ (iv) prescribes a statutory threshold definition of ‘substantial and unreasonable’ diversion or interference (v) prohibits reliance on the exception on grounds that third-party consultation would likely be too onerous and provides flexibility for agencies not to consult in those circumstances (vi) permits agencies to rely on the exception where the cumulative impact of processing multiple requests received from the same applicant would constitute a ‘substantial and unreasonable’ diversion or interference (vii) prescribes the matters that must be contained in a ‘refusal to process’ decision relying on the voluminous requests exception.
RECOMMENDATION 64: That legislation establishing Victoria’s new third-generation ‘push’ FOI system require agencies to adequately resource their FOI function and empower the Information Commissioner to direct agencies (and ministers) to review the adequacy of their FOI resourcing if their capacity to process requests is frequently constrained by the resourcing of their FOI function.
RECOMMENDATION 65: That the s 25A(5) exception in the Freedom of Information Act 1982 (Vic) not be retained in legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system.
RECOMMENDATION 66: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system apply the same threshold for consultation across all third-party consultation provisions, modelled on s 54 of the Government Information (Public Access) Act 2009 (NSW).
RECOMMENDATION 67: That—for the purpose of facilitating partial access to information—legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system include a provision, modelled in part on s 22(1)(d), (2) of the Freedom of Information Act 1982 (Cth) and s 73(2) of the Right to Information Act 2009 (Qld): (i) requiring agencies (and ministers) to provide an edited copy of a document if reasonably practicable, unless the applicant has indicated that they do not want to receive it (ii) requiring agencies to provide partial access without disclosing exempt information, rather than authorising them to make such deletions as are necessary to provide partial access (iii) permitting, but not requiring, agencies to delete irrelevant information.
RECOMMENDATION 68: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system retain the Information Commissioner’s power to decide an FOI review application under s 49P of the Freedom of Information Act 1982 (Vic) and: (i) extend that power to the Public Access Deputy Commissioner without the need for an instrument of delegation; and (ii) empower the Information Commissioner and Public Access Deputy Commissioner to delegate, to senior staff, their power to decide an FOI review application, including the power to make a fresh decision on the original request.
RECOMMENDATION 69: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system empower the Information Commissioner to ensure that agencies (and ministers) take appropriate action to give effect to the Office of the Victorian Information Commissioner’s FOI review decisions, subject to their Victorian Civil and Administrative Tribunal review rights.
RECOMMENDATION 70: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system extend the time frame specified in ss 49P(4)(b) and 52(9) of the Freedom of Information Act 1982 (Vic) from 14 days to 30 days.
RECOMMENDATION 71: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system include a vexatious applicant provision, modelled on ss 89K–89N of the Freedom of Information Act 1982 (Cth) and s 114 of the Right to Information Act 2009 (Qld), empowering the Information Commissioner to make a vexatious FOI applicant declaration on the application of an agency or minister, or on the Commissioner’s own initiative, with a right of review to the Victorian Civil and Administrative Tribunal.
RECOMMENDATION 72: That legislation establishing Victoria’s new third-generation ‘push’ FOI system address Recommendations 4 and 5 in the Integrity and Oversight Committee’s Performance of the Victorian integrity agencies 2021/22 report.
RECOMMENDATION 73: That legislation establishing Victoria’s new third-generation ‘push’ FOI system protect the Information Commissioner, Public Access Deputy Commissioner and Office of the Victorian Information Commissioner staff from civil and criminal liability with respect to their good-faith performance of their statutory functions and the exercise of their statutory powers.
RECOMMENDATION 74: That legislation establishing Victoria’s new third-generation ‘push’ FOI system retain the legal protections afforded to agencies (and ministers) in s 62 of the Freedom of Information Act 1982 (Vic), and extend those protections to the Information Commissioner and Public Access Deputy Commissioner with respect to their power to decide an FOI review application, as well as to persons with delegated authority to decide FOI review applications.
RECOMMENDATION 75: That legislation establishing Victoria’s new third-generation ‘push’ FOI system empower the Information Commissioner to make binding recommendations in connection with an FOI complaint.
RECOMMENDATION 76: That legislation establishing Victoria’s new third-generation ‘push’ FOI system empower the Information Commissioner to issue binding professional standards and guidelines on FOI legislation—including on how provisions should be interpreted—and require agencies (and ministers) to have regard to them when administering the FOI scheme.
RECOMMENDATION 77: That legislation establishing Victoria’s new third-generation ‘push’ FOI system ensure the Information Commissioner is granted appropriate powers to regulate compliance with the legislation, and professional standards and guidelines issued under it, including empowering the Information Commissioner to impose sanctions for serious or serial agency and ministerial non-compliance with their statutory obligations under the FOI scheme.
RECOMMENDATION 78: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system: (i) empower the Information Commissioner to make, vary and revoke a vexatious applicant declaration on the application of an affected agency (or minister) or on the Commissioner’s own initiative (ii) prescribe the grounds for making a vexatious applicant declaration—namely, repeat requests for information by the same applicant or applicants acting in concert which are manifestly unreasonable or an abuse of process (iii) establish a right of review to the Victorian Civil and Administrative Tribunal in respect of a vexatious applicant declaration of the Information Commissioner.
RECOMMENDATION 79: That legislation establishing Victoria’s new third-generation ‘push’ FOI system introduce offence provisions for: (i) destroy, conceal or alter any record of government information for the purpose of preventing disclosure under FOI legislation (ii) wilfully obstruct 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 (iii) wilfully obstruct, hinder or resist the Information Commissioner, Public Access Deputy Commissioner or member of staff of the Office of the Victorian Information Commissioner, modelled on s 63F of the Freedom of Information Act 1982 (Vic).
RECOMMENDATION 80: That the Victorian Government review the desirability and feasibility of making the position of Information Commissioner an independent officer of Parliament.
RECOMMENDATION 81: That the Victorian Government review the desirability and feasibility of the Victorian Independent Remuneration Tribunal setting and reviewing the remuneration of the Information Commissioner and Public Access Deputy Commissioner.
RECOMMENDATION 82: That the Victorian Government review the desirability and feasibility of directly funding the Office of the Victorian Information Commissioner through Parliament’s appropriation, similar to the funding arrangements of the Independent Broad-based Anti-corruption Commission, Victorian Ombudsman and Victorian Inspectorate.
RECOMMENDATION 83: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system preserve the review rights in s 50(1)(b) and (c) of the Freedom of Information Act 1982 (Vic) and clarify that the respondent to the proceeding is the relevant agency.
RECOMMENDATION 84: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system preserve the review rights in s 50(3D) of the Freedom of Information Act 1982 (Vic) and clarify that the respondent to the proceeding is the original FOI applicant.
RECOMMENDATION 85: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system preserve the review rights in s 50(3)–(3A) of the Freedom of Information Act 1982 (Vic) and clarify that, where, as a result of machinery of government changes, (i) a primary agency has possession and control of information of a legacy agency the subject of a review decision of the Information Commissioner; and (ii) the primary agency would have a right to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the Information Commissioner’s decision under s 50 of the Freedom of Information Act 1982 (Vic), the legacy agency has standing to apply to VCAT as an affected third party.
RECOMMENDATION 86: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system clarify that, in a review conducted by the Victorian Civil and Administrative Tribunal of a deemed refusal decision of an agency, the Tribunal will, for the purpose of deciding the review, consider the actual decision of the agency.
RECOMMENDATION 87: That legislation establishing the review regime in Victoria’s new third-generation ‘push’ FOI system clarify that the Victorian Civil and Administrative Tribunal cannot consider the adequacy of an agency’s search for documents in connection with a request, except in respect of the Tribunal’s review of a deemed refusal decision where a ‘documents do not exist or cannot be located’ decision is made by an agency before the review is heard or decided.
RECOMMENDATION 88: That legislation establishing Victoria’s new third-generation ‘push’ FOI system include a statutory requirement for the Act to be reviewed four years after its commencement, and every five years thereafter.
RECOMMENDATION 89: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system ensure that there is no application fee.
RECOMMENDATION 90: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system ensure that no access charges are imposed for requests for personal or health information.
RECOMMENDATION 91: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system limit access charges for non-personal and non-health-related requests to the cost of copying and delivering the information sought, and ensure that the first 20 pages can be accessed free of charge.
RECOMMENDATION 92: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system contain a general discretion to waive, reduce or refund any access charges payable under the Act, supported by binding FOI Guidelines issued by the Information Commissioner on decision-making with respect to the fee-waiver provision (including a straightforward standardised threshold for qualifying for the waiver that includes legal aid clients).
RECOMMENDATION 93: That the Victorian Government, as part of the Treaty negotiations, consider how structural barriers to Aboriginal people and Aboriginal Community Controlled Organisations (ACCOs) accessing government-held information under the FOI scheme are best overcome.
RECOMMENDATION 94: That legislation establishing the formal-release mechanism in Victoria’s new third-generation ‘push’ FOI system empower the Information Commissioner to review agency (and ministerial) decisions to impose an access charge and the quantum of such charges.
RECOMMENDATION 95: That the public’s right to request a correction or amendment of personal information under the Freedom of Information Act 1982 (Vic), Health Records Act 2001 (Vic) and Privacy and Data Protection Act 2014 (Vic) be consolidated in the Privacy and Data Protection Act 2014 (Vic). 230 Inquiry into the operation of the Freedom of Information Act 1982 (Vic)
RECOMMENDATION 96: That the Victorian Government consolidate the Health Privacy Principles in the Health Records Act 2001 (Vic) and the Information Privacy Principles in the Privacy and Data Protection Act 2014 (Vic) in the Privacy and Data Protection Act 2014 (Vic), under the regulation of the Office of the Victorian Information Commissioner.
RECOMMENDATION 97: That access to personal and health information be regulated under Victoria’s new third-generation push FOI system, and that this access arrangement replace the existing fragmented access arrangements under FOI and health and privacy legislation.
RECOMMENDATION 98: That the public’s enforceable access and review rights under the Freedom of Information Act 1982 (Vic), with respect to personal and health information, be retained in legislation establishing the formal mechanism in Victoria’s new third-generation ‘push’ FOI system, but positioned as a last resort for obtaining access to such information.
RECOMMENDATION 99: That legislation establishing Victoria’s new third-‘push’ FOI system authorise, strongly encourage and support agencies (and ministers) to release personal and health information through the informal-release mechanism as a first port of call, and establish, for that purpose, administrative access schemes for frequently requested information.
RECOMMENDATION 100: That legislation establishing Victoria’s new third-generation ‘push’ FOI system protect FOI decision-makers from civil and criminal liability with respect to their good-faith release of information under the informal and formal release mechanisms.
RECOMMENDATION 101: That legislation establishing Victoria’s new third-generation ‘push’ FOI system exempt from the FOI scheme information that can be accessed under the access to information regime established by s 9 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). 231
