FOI and COVID-19: Frequently asked questions
Due to the impacts of the coronavirus (COVID-19), many Victorian government agencies enacted business continuity plans and commenced working remotely from March 2020.
While some agencies have started the gradual return to office-based working arrangements, many agency officers continue to work remotely to minimise health risks to the wider community.
While it is a matter for individual agencies to determine the working structure and location of its workforce, agencies must meet their statutory obligations under the Freedom of Information Act 1982 (Vic) (FOI Act) and responsibilities under the FOI Professional Standards.
The impacts of COVID-19
While working remotely initially posed some challenges when administering the FOI Act, many agencies rapidly adapted their work processes to enable them to meet their ongoing statutory obligations.
However, OVIC acknowledges that the following have led to delays in the processing of freedom of information (FOI) requests by some 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 impact of new variants of COVID-19, 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 with a view to the agency being able to efficiently identify and process relevant documents.
In April 2020, OVIC developed frequently asked questions (FAQs) for FOI practitioners and members of the public. The FAQs, which were updated in August 2021 and January 2022, cover topics such as document searches, delays in processing requests, where to seek assistance, and OVIC reviews and complaints.
FOI and COVID-19 FAQs for agencies
What can I do if staff still can’t search for documents because they are working from home?
While many agencies had commenced a gradual return to office-based working arrangements, the impact of new variants of COVID-19 has meant many agency officers continue to work remotely. While restrictions are in force, some agencies are not able to access some of their documents. OVIC anticipates that those agencies will be able to access hard copy documents when restrictions have eased.
If your agency is unable to access documents due to restrictions, be open and transparent with applicants about your agency’s capacity to process FOI requests. Consider updating your agency’s website and other communication channels to advise of changed FOI practices to notify potential and existing applicants of your agency’s ability to process requests.
Where delays in processing a request cannot be avoided, explain the reason for the delay and provide updates to applicants where necessary and practicable. Agencies may consider seeking an extension of time from applicants as well.
Keep in mind Professional Standards 6.1 and 8.4 which require searches to be recorded and communicated to applicants in certain circumstances.
What should I do if my agency is unable to meet the statutory timeframe to make a decision?
OVIC acknowledges some agencies, such as health and law enforcement agencies, may be engaged in delivering COVID-19 pandemic related duties and this may mean that the ability to meet statutory timeframes could be impacted.
It is important to be open and transparent with applicants about your agency’s capacity to process requests, particularly in terms of potential delays.
You may consider asking the applicant for a short extension of time in which to process the request in accordance with sections 21(2)(b) and 21(3) of the FOI Act.
If you do not receive the applicant’s agreement for an extension of time, advise the applicant of their right to lodge a complaint with OVIC, or seek review under section 53 of the FOI Act by the Victorian Civil and Administrative Tribunal (VCAT) on the basis of a deemed refusal.
If you notify the applicant of their VCAT appeal rights, note any limitations on accessing VCAT services during the COVID-19 pandemic. See VCAT’s website for more information on their COVID-19 response.
Which FOI requests should the FOI team prioritise?
Identify FOI requests that may not be able to be finalised in the statutory timeframe early, so you may advise the applicant of your agency’s capacity and circumstances as soon as possible. Otherwise, continue working through requests according to your agency’s internal processes and procedures for prioritising requests.
Engage with applicants early and meaningfully and be transparent about your agency’s capacity to process requests.
Can I defer FOI requests or not accept them?
Unless there are exceptional circumstances, agencies must not defer or not accept FOI requests.
Be open and transparent with applicants about your agency’s capacity to process FOI requests, and any anticipated delays. Explain any limitations, delays or other issues that may affect the applicant’s FOI request. Consider asking the applicant for a reasonable extension of time in which to process the request in accordance with sections 21(2)(b) and 21(3) of the FOI Act.
What if I need to speak to someone about my concerns?
You should discuss FOI business continuity concerns or concerns regarding your agency’s ability to meet its obligations under the FOI Act and Professional Standards with your agency in the first instance.
You may also contact OVIC to discuss how we can best support your agency and provide general FOI advice.
Will OVIC give my agency an extension of time?
Where your agency clearly explains the reasons for seeking an extension of time to provide exempt documents or a written submission, for example, OVIC will endeavour to support your agency and provide a reasonable extension of time.
I’m from a smaller agency and the only FOI Officer with limited access to the office currently, what do I do?
OVIC appreciates the challenges agencies face when working remotely are heightened in smaller agencies, with fewer FOI resources and staff. Consider contacting OVIC to discuss how we can support you by emailing your query to firstname.lastname@example.org.
In light of changing COVID-19 circumstances and the impacts on staff returning to office-based working arrangements, identify your capacity to process FOI requests (for example, do you have access to all documents in your agency?).
Communicate this information to applicants so they are aware of your agency’s current operating environment and whether there may be any issues with processing requests.
How is OVIC supporting agencies?
In light of the impacts of new variants of COVID-19, some agencies, such as those engaged in delivering COVID-19 pandemic related duties, may be experiencing disruptions in their ability to deliver other functions.
OVIC understands many 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, or more time required, to access hard copy documents.
Where necessary, OVIC will consider requests from agencies for additional time to respond to requests for information, including submissions.
Can I use section 25A(1) of the FOI Act to refuse requests due to changed working conditions?
OVIC urges agencies not to rely unnecessarily on section 25A(1) of the FOI Act to refuse to grant access to an applicant’s FOI request due to the impact of COVID-19.
This provision, which provides for an agency to refuse a request on grounds processing the request would involve a substantial and unreasonable diversion of the agency’s resources from its other operations, should not be relied upon by agencies during this time without the substantial and unreasonable size and nature of work involved in processing the request being unmanageable.
While the impact of COVID-19 will likely be a compounding factor, OVIC considers this provision will not necessarily be engaged on the basis of an agency’s changed working and operational environment alone.
What can I do about processing payments for application fees and access charges remotely?
It is a matter for agencies to make appropriate arrangements to ensure continuity for processing payments with changing working conditions.
OVIC encourages agencies to take a flexible approach to accepting payment of application fees and access charges, taking into consideration the circumstances of the applicant.
Where possible, process payments electronically (for example, by credit card) in accordance with Professional Standards 2.2 and 4.3. If your agency can receive online requests, direct applicants to make their request online and pay the application fee electronically.
How can I verify the identity of an applicant who’s made an FOI request for their own personal information?
identity. Some agencies may require different levels of verification to be satisfied of an applicant’s identity before providing access to documents.
Generally, you may consider requesting the applicant to send certified copies of identification documents (such as a drivers licence, health care card, medicare card, or student ID).
Regardless of which method you use to verify their identifiy, you must satisfy yourself that the person requesting access to the relevant documents is who they say they are.
How do I provide OVIC with documents subject to a review or relevant to a complaint? What about documents claimed to be exempt under sections 28, 29A, 31 or 31A?
Agencies can provide OVIC with all documents subject to a review or relevant to a complaint via our secure File Share Platform. Contact us on 1300 006 842 or at email@example.com if your agency would like further information on using our File Share Platform.
In relation to documents claimed to be exempt under sections 28, 29A, 31 or 31A of the FOI Act, the Information Commissioner is now permitted under section 63D(4) of the FOI Act to require an agency to provide these documents for inspection by secure electronic means.
An OVIC staff member will contact your agency if this is required. OVIC must destroy the documents as soon as practicable after inspecting them. We will tell your agency in writing when the inspection is complete and the documents have been destroyed.