Section 61GB - Informal resolution
Extract of legislation
Relevant Professional Standards
| Professional Standard 10.1
|
An agency must assist the Information Commissioner or Public Access Deputy Commissioner in their attempt to informally resolve a review or complaint. |
| Professional Standard 10.2 | An agency must give consideration to a preliminary view issued by, or on behalf of, the Information Commissioner or Public Access Deputy Commissioner during a review. |
The Office of the Victorian Information Commissioner (OVIC) performs its functions and exercises its powers with as little formality and technicality as possible.3 If OVIC decides a complaint can be resolved informally, it must take reasonable steps to resolve the complaint.
Informal resolution involves identifying ways to achieve what the complainant is seeking in the complaint and find an outcome that both the complainant and the agency or Minister are satisfied with.
Agencies and Ministers should approach OVIC’s informal resolution process with an open mind, and work with OVIC to resolve the complaint with as little formality and technicality as possible.4
Where OVIC resolves a complaint, OVIC asks the complainant to agree to close the complaint.
Reasonable steps OVIC may take to try to informally resolve common complaints
OVIC must take ‘reasonable steps’ to resolve a complaint.6 What is considered ‘reasonable’ will depend on the nature of the complaint and the parties involved.
Generally, OVIC’s informal resolution process may include:
- contacting a complainant to find out more about their complaint and clarifying what documents or resolution they are seeking;
- contacting an agency or Minister to make preliminary enquiries about the complaint and seeking a response;
- considering information provided by a complainant, agency or Minister, to assess ways to informally resolve the complaint;
- issuing a preliminary view or resolution options for consideration by the complainant, agency or Minister;
- following up with a complainant, agency or Minister to obtain further information and propose resolution options for consideration; and
- identifying and monitoring agency compliance with the Professional Standards through requests for further information or written submissions.
The sections below outline how OVIC approaches informal resolution of common complaints.
More information
For more information on what you can make a complaint about, see section 61A – Complaints.
Delay
For a delay complaint, OVIC will ask the agency or Minister for information about the current status of the request, an estimate of when the decision will be made, and the reasons for the delay (for example, workload, staffing resources and other factors).
The agency or Minister should provide as much information as possible to explain the cause of the delay and when a decision will be made.
OVIC will use this information to explain to the complainant why the delay has occurred, when they can expect a decision, and what the agency or Minister is doing to progress the request.
Providing a detailed explanation for the delay, and if appropriate, contacting the complainant to acknowledge and apologise for the delay can help to resolve the complaint.
OVIC cannot require an agency or Minister to make a decision by a certain date. When OVIC receives a delay complaint, OVIC generally keeps the complaint open until a decision is made or if the complainant applies to the Victorian Civil and Administrative Tribunal on the basis that the agency or Minister is ‘deemed’ to have refused access to their request because a decision was not made within the statutory timeframe.
More information
For more information on deemed refusals, see section 53(1) – Reviews where decisions delayed.
An agency or Minister should engage early and openly with applicants, and be transparent about the time needed to process the request and the potential for delays in providing a decision.
Documents do not exist or cannot be located
For a complaint about documents that do not exist or could not be located, OVIC will usually make enquiries with both the complainant and the agency or Minister.
For a complainant, OVIC will ask the complainant to provide information about why they believe more documents exist and should have been located in relation to their request. OVIC will use this information to make targeted enquiries with the agency or Minister.
For an agency or Minister, OVIC will usually ask the agency or Minister to describe how it searched for documents. OVIC may ask an agency for a copy of its document search.8
OVIC will use this information to explain to the complainant why the agency or Minister believes the document does not exist or cannot be located. Or, if OVIC is not satisfied with the agency’s or Minister’s response, OVIC may request it to provide further information, or undertake further searches for the documents.
The information can assist OVIC to form a view about whether a document is likely to exist or should have been located. This can result in other steps being taken by OVIC, such as requiring the agency or Minister to conduct a further search for documents or making recommendations.
Request does not meet the requirements of section 17
For a complaint about a request that the agency or Minister declined to process because the request did not meet the requirements of section 17, OVIC will ask the agency or Minister for information about the steps taken to assist the complainant to make a request, including copies of communications between the parties.10
OVIC may also ask the agency or Minister for information to assist the complainant to revise their request so that it meets the requirements of section 17 and can be processed.
OVIC will use the information to explain to the complainant why their request did not meet the requirements of section 17, and provide guidance on what the complainant could do to make a request that can be processed.
In some instances, it can help if the agency or Minister acknowledges where an error was made in handling a request and explains how the agency or Minister has update its processes to help avoid a similar outcome in the future.
If the complainant is not satisfied with the agency or Minister’s response, OVIC may ask the complainant to further explain what kind of outcome they are seeking or to provide more information, if relevant.
Where a complaint cannot be resolved informally, OVIC may decide to use formal mechanisms under the Act. These might include:
- conciliating the complaint under section 61H, with the aim of reaching an agreement to resolve the complaint. If the complaint is successfully conciliated, the outcome will be recorded in a written agreement and a copy provided to the agency and complainant;
- requiring an agency to produce documents or attend OVIC to answer questions under section 61U; or
- making recommendations under section 61L in relation to the complaint, including recommendations to improve policies, procedures and systems.
Complaints play a valuable role in:
- restoring trust with members of the public and help to restore relationships between applicants and agencies or ministers;
- leading to better services and outcomes for individuals; and
- identifying ways to improve services for the public.
Complaints can provide valuable insights into an agency’s practices and processes, and may require further action by management, including improvements to existing policies, procedures or service delivery and the need for specified and broader staff training in freedom of information.
Effective complaint handling and engagement by agencies in the complaints processes improves an agency’s reputation for being accountable, transparent and responsive to the public.
- Freedom of Information Act 1982 (Vic), section 6G(2). Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI complaints. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
- Section 61E of the Act and Professional Standard 10.1 require agencies to assist OVIC in dealing with a complaint.
- Freedom of Information Act 1982 (Vic), section 6G(2). Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI complaints. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
- Section 61E of the Act and Professional Standard 10.1 require agencies to assist OVIC in dealing with a complaint.
- Freedom of Information Act 1982 (Vic), section 61GB.
- Freedom of Information Act 1982 (Vic), section 61GB.
- Under Professional Standard 6.1, where a search for documents is conducted, an agency must ensure a record is kept of searches undertaken, including locations searched and the methods or types of searches undertaken.
- Under Professional Standard 6.1, where a search for documents is conducted, an agency must ensure a record is kept of searches undertaken, including locations searched and the methods or types of searches undertaken.
- Under section 17(3), an agency or Minister must assist an applicant make a valid request that meets the requirements of section 17. Further, Professional Standard 2.4 requires an agency to provide notice that a request is not valid, and where possible, provide advice to the person to make the request valid.
- Under section 17(3), an agency or Minister must assist an applicant make a valid request that meets the requirements of section 17. Further, Professional Standard 2.4 requires an agency to provide notice that a request is not valid, and where possible, provide advice to the person to make the request valid.
