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FOI and COVID-19: Frequently Asked Questions for members of the public

Background

Due to the impacts of the coronavirus (COVID-19), many Victorian government agencies commenced working remotely from March 2020.

Since August 2021, many agency officers continue to work remotely due to ongoing Victorian lockdowns and social distancing requirements.

Despite this, Victorian government agencies must continue to meet their obligations under the Freedom of Information Act 1982 (Vic) (FOI Act).

The impacts of COVID-19

The following have led to delays in the processing of freedom of information (FOI) requests by some Victorian government agencies:

  • remote working arrangements;
  • reduced staff resourcing;
  • the redeployment of frontline agency staff to assist with COVID-19-related duties; and
  • a significant increase in the number of FOI requests received.

As a result of the extended Victorian lockdowns and restrictions on movement, some agencies may be experiencing ongoing challenges in the timely processing of FOI requests.

OVIC encourages applicants to take a flexible and practical approach when consulting with an agency on the scope of an FOI request, to enable the agency to efficiently identify and process relevant documents.

The below frequently asked questions (FAQs) were designed for members of the public who intend to make an FOI request, or have made an FOI request.

FOI and COVID-19 FAQs for members of the public

While many agencies had commenced a gradual return to office-based working arrangements, the extended Victorian lockdown has meant many agency officers continue to work remotely.

Many agencies continue to rely heavily on electronic forms of communication (such as email) and payment of application fees and access charges (such as credit card).

If possible, try to make your FOI request electronically (for example, by email or online).

Similarly, if you’re not sure how to pay the FOI application fee, talk to the agency about any electronic payment methods it offers.

Due to the extended Victorian lockdowns, many Victorian government agency staff continue to work remotely and some staff are diverted from their usual duties to assist their agency or other agencies with COVID-19 related work. For some agencies, this may mean limited access to or more time is required to access hard copy documents.

We encourage agencies and applicants to take a flexible and practical approach to making and managing FOI requests. Communicate with the agency and work together to find an outcome that works.

For example, the agency may ask you to narrow the scope of your request so it can focus on the documents it does have access to, to provide you with a decision sooner. If you would prefer that the agency processes the request as a whole (without narrowing the scope to the documents the agency can currently access), the agency may ask you to agree to an extension of time to process your request. This is so the agency can comply with the statutory timeframe under the FOI Act, and means you will receive a decision on the whole request at a later date.

CCTV footage

OVIC has been advised by the Department of Transport that the Victorian lockdown is having an impact on its ability to access to train CCTV footage from cameras on trains (this restriction is limited to train CCTV footage only).

If your request seeks access to train CCTV footage, you should still lodge your request to ensure the relevant CCTV footage is secured (if not secured, it is possible the footage could be destroyed in accordance with the agency’s destruction policy). OVIC encourages applicants to discuss options with the agency as to when access will be available for the purpose of processing the relevant train CCTV footage.

School records

In addition, the Department of Education and Training has advised that access to documents located at some schools is restricted, due to limited staff at schools and/or staff working remotely.

If your FOI request seeks access to school records stored in hard copy format (and possibly electronic format), it would be reasonable for an agency to seek your agreement to limit your request to accessible documents in the first instance and to suggest that a further request be made at a later date when access is available.

If documents are stored and accessible to an agency, then no deferral would be necessary, as staff working remotely can still access those documents.

OVIC encourages agencies and applicants to take a flexible and practical approach to making and managing FOI requests. Communicate with the agency and work together to find an outcome that works.

Some agencies continue to experience delays in processing FOI requests following the lengthy disruption to working arrangements since March 2020.

OVIC encourages agencies and applicants to take a flexible and practical approach to making and managing requests. Communicate with the agency and work together to find an outcome that works.

For example, the agency may ask you to agree to an extension of time to process your request. This is so the agency can comply with the statutory timeframe under the FOI Act, and means you will receive a decision on the request at a later date.

If your request is large (for example, you have requested access to a large number of documents), you may be asked to reduce the size of your request so that it may be processed in time. You do not have to agree to such a request, but it is helpful to discuss the scope of your request with the agency and work together to reach a solution that works.

Making a complaint to VCAT

If you do not wish to agree to the extension of time and the due date for the request passes, you have the right to make a complaint to OVIC or apply to the Victorian Civil and Administrative Tribunal (VCAT) on the basis that the agency is taken to have refused your request.

OVIC encourages applicants to first contact the agency to discuss any delay in processing an FOI request and to work with the agency to find a suitable outcome. If you are still not satisfied, you have the right to make a complaint to OVIC about an action taken, or failed to be taken, by an agency (or a Minister) when performing functions or meeting its obligations under the FOI Act.

Please refer to Make a Complaint for more information on OVIC’s complaints process.

If you do not wish to make a complaint to OVIC, you may seek a review under section 53 of the FOI Act by VCAT on the basis of a deemed refusal. For more information regarding applying to VCAT visit its website.

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