Section 61U - Notice to produce or attend

The Office of the Victorian Information Commissioner (OVIC)² takes regulatory action to promote, assure and enforce information rights. It does so to build public trust in government, by committing to Victorians that strong action will be taken to ensure their information rights are respected and upheld.

When taking regulatory action, OVIC is guided by the following principles:

• 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 and the Privacy and Data Protection Act 2014 (Vic) 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.

• A notice to produce or attend compels a person (including an individual and an organisation) to provide information to OVIC. For example, OVIC may require a person to:
• produce a specific document within a specified timeframe and in a specific way (for example, provide an electronic version of the document via secure electronic means);⁶
• attend at a specific date, time, and place to provide a specified document or documents to OVIC;⁷ or
• attend an examination before OVIC at a specific date, time and place (this may be in person or via audio or video-link), to give evidence and to produce a document.⁸

The power to issue a notice to produce or attend is a coercive power, meaning that there are penalties attached if a person does not comply with the notice requirements, unless they have a reasonable excuse for not complying.

OVIC may issue a notice to produce or attend in relation to reviews, complaints, and investigations.¹⁰

If a principal officer or a Minister challenges OVIC’s jurisdiction to serve a notice to produce or attend, an application to the Supreme Court may be made to decide the question of jurisdiction.

• OVIC may issue a notice to produce or attend:
• at any stage during a review under Part VI;¹⁵
• when handling a complaint under Part VIA (if conciliation has failed, and OVIC decides that the complaint cannot be dealt with informally or without technicality and more information is required to deal with the complaint);¹⁶ and
• during an investigation under Part VIB.¹⁷

The Information Commissioner must perform functions and exercise powers with as little formality and technicality as possible.¹⁸ OVIC seeks to engage with the public and regulated bodies openly and constructively. Where appropriate, it seeks to resolve issues by agreement or informally before resorting to formal regulatory action or the use of coercive powers, where doing so will help resolve issues or disputes quickly and efficiently.

Before issuing a notice to produce or attend, OVIC may invite a person to provide information or documents to the Commissioner voluntarily. There may be situations where this is not appropriate, in which case a notice will be issued and served.

A person who voluntarily provides information may seek legal advice, or bring a legal representative or support person to an interview. An interview may be conducted via video-link or in person. It will be conducted in private, but it will be recorded and used by OVIC in relation to the review, complaint, or investigation.

If OVIC conducts an interview or asks for information from a person voluntarily, the person does not have to answer every question, or produce every requested document, and may leave the interview at any time. However, if they do provide information to OVIC, they must tell the truth. Under section 63F, it is an offence to provide information to OVIC knowing that it is false or misleading in a material way.

If a person is concerned about providing information voluntarily, for example if they are concerned about breaching secrecy provisions, OVIC may decide to issue a notice to produce or attend so the person receives statutory protections under the Act.

OVIC may also decide to issue a notice to produce or attend following an unsuccessful attempt to receive the information voluntarily, or if OVIC is concerned that documents will be destroyed.²⁰

OVIC may issue a notice to produce or attend:

• to a principal officer:
  • during a review of an agency or Minister’s decision, either on behalf of the agency or Minister;²⁵
  • in dealing with a complaint, either in relation to the principal officer or on behalf of the agency;²⁶
• to a Minister in dealing with a complaint about the Minister;²⁷ and
• on a person (an individual or a body corporate) during an investigation.²⁸

A notice to produce will specify:

• the document or documents to be produced;
• the date and time by which the documents must be produced; and
• the manner in which the documents are to be produced.

A notice to attend will specify the time and place for attendance. OVIC may also outline the intended topics to be discussed at an examination.

If the notice relates to attendance by audio visual link or audio link, it:

• does not need to specify a place for attendance; and
• may require any documents to be provided by secure electronic means and in a specified manner.³²

A notice to produce or attend must provide information explaining that failing to comply with a notice without reasonable excuse may be an offence and outline the maximum penalty for an offence.³³ The notice must also include examples of what may constitute a reasonable excuse.³⁴

A person who has been served with a notice to produce or attend should read the notice carefully as it will set out what they need to do. If the person is not clear about the notice and what they need to do, they should contact OVIC as soon as possible. The person may seek legal advice, or legal representation, in relation to the notice if they wish.³⁶