Section 61O - Information Commissioner may conduct investigation
Extract of legislation
Part VIB empowers the Information Commissioner to conduct own-motion investigations to examine how agencies perform or exercise their functions or obligations under the Act. To support these investigations, the Commissioner can compel information and documents and examine witnesses.
For more information on the Information Commissioner’s power to compel information and examine witnesses, see the FOI Guidelines on Part VIC – Coercive Powers.
The Information Commissioner must produce a report after the completion of an own-motion investigation and, unless there are compelling reasons not to, will usually arrange for that report to be tabled in the Victorian Parliament.
For more information on reporting on investigations, see:
The Office of the Victorian Information Commissioner’s (OVIC) Regulatory Action Policy explains how OVIC2 exercises its investigatory powers. It describes the guiding principles OVIC follows in conducting regulatory action (including investigations):
- Independent– OVIC exercises its regulatory powers independent of government;
- Collaborative– OVIC engages with the public and regulated bodies openly and constructively;
- Effective and targeted– OVIC uses its powers to protect the Victorian community from harm caused by infringements of their information rights and responds to possible contraventions of the Act based on their likelihood and severity. OVIC’s regulatory action leads to changed behaviour on the part of regulated bodies;
- Proportional– OVIC takes action that is proportionate to the issue being addressed. The scale of OVIC’s regulatory response is based on the risk of harm the issue creates for the community or for individuals and whether the issue is systemic; and
- Transparent and consistent– OVIC’s decisions, actions and performance are clearly explained and open to public scrutiny. OVIC’s regulatory action is consistent in similar circumstances.
For information on who oversees OVIC’s investigations, see section 61ZD – Office of the Information Commissioner to report to the Victorian Inspectorate on issue of notice to produce or attend.
Own-motion investigations are done at the Information Commissioner’s initiative and discretion. This means the investigation does not need to be in response to a complaint or an application to investigate conduct. OVIC identifies issues of non-compliance in many ways including through:
- FOI reviews and complaints;
- monitoring compliance with the FOI Professional Standards;
- stakeholder engagement;
- engaging with regulated bodies including through their reporting on their FOI operations; and
- reports from members of the public, including the media.
An investigation may examine issues at one agency or wider ‘systemic’ issues affecting multiple agencies or the FOI system more generally.
When conducting regulatory action (such as an investigation), OVIC seeks to be ‘targeted and proportional’. This means OVIC targets issues based on how likely they are to occur and how severe the impact would be if they did occur or reoccur. OVIC takes action that is proportionate to the issue being addressed.
OVIC takes a risk-based approach in deciding when and how to investigate. OVIC targets practices or issues that most seriously undermine the object of the Act.
For more information on how OVIC investigates agency conduct under the Act, see OVIC’s Regulatory Action Policy (Schedule 2 – Freedom of Information Regulatory Activities).
OVIC can investigate, in relation to an agency or principal officer the:
- performance or exercise of functions under the Act;
- failure to perform or exercise functions under the Act; or
- purported performance or exercise of functions under the Act.
Example
OVIC conducted an own motion investigation into the timeliness of FOI decisions at five Victorian government agencies to identify the factors contributing to delay.
Read the report here.
OVIC also cannot investigate a claim that a document is exempt for national security, defence or international relations reasons under section 29A.8
The Information Commissioner may delegate the power to conduct an investigation to the Public Access Deputy Commissioner in accordance with section 6R(2).
- The FOI Guidelines refers to ‘OVIC’ to mean the Information Commissioner and the Public Access Deputy Commissioner and OVIC staff who assist in the conduct of investigations under the Act.
- The FOI Guidelines refers to ‘OVIC’ to mean the Information Commissioner and the Public Access Deputy Commissioner and OVIC staff who assist in the conduct of investigations under the Act.
- A Ministerial officer is person employed as a Ministerial officer under Part 6 of the Public Administration Act 2004 (Vic).
- Freedom of Information Act 1982 (Vic), section 61O(2).
- Freedom of Information Act 1982 (Vic), section 29A(3); this includes a certificate made under section 29A(2), a question whether a document falls within the exemption in section 29A(1), 29A(1A) or 29A(1B), and a decision to sign a certificate under section 29A(2).
- A Ministerial officer is person employed as a Ministerial officer under Part 6 of the Public Administration Act 2004 (Vic).
- Freedom of Information Act 1982 (Vic), section 61O(2).
- Freedom of Information Act 1982 (Vic), section 29A(3); this includes a certificate made under section 29A(2), a question whether a document falls within the exemption in section 29A(1), 29A(1A) or 29A(1B), and a decision to sign a certificate under section 29A(2).
