Section 6G - Functions of the Information Commissioner
Extract of legislation
|6G||Functions of the Information Commissioner|
|(1)||The Information Commissioner has the following functions—|
|(a)||the functions set out in section 6I;|
|(b)||any other functions conferred on the Information Commissioner by or under this Act;|
|(c)||the functions conferred on the Information Commissioner by or under the Privacy and Data Protection Act 2014 or any other Act.|
|(2)||The Information Commissioner must perform functions and exercise powers under this or any other Act with as little formality and technicality as possible.|
The Information Commissioner’s functions
The Information Commissioners functions include those outlined in section 6I and any other functions conferred on the Information Commissioner by or under the Act.1 The Information Commissioner also has the functions conferred on them by or under the Privacy and Data Protection Act 2014 (Vic)2 or any other Act.
Performing functions with as little formality and technicality as possible
The Information Commissioner and the Public Access Deputy Commissioner must perform their functions and exercise their powers with as little formality and technicality as possible.3
While the Information Commissioner has a general obligation to reduce formality and technicality when performing their role generally, they also have specific obligations to avoid technicality and formality in conducting reviews and handling complaints.4
The purpose of the requirement to perform functions and exercise powers with as little formality and technicality as possible is to ensure the Information Commissioner can act informally and flexibly under the Act, where appropriate. The Information Commissioner may use their resources more efficiently and effectively to increase the public’s access to rights, benefits, and services under the Act by reducing strict adherence to formal processes and procedures which may not be appropriate in every instance.5
Reducing formality and technicality may involve:
- using plain language;
- developing informal processes or procedures to increase access to services and benefits; and
- adopting flexible procedures to best fit the circumstances.
For example, in relation to conducting reviews in accordance with Part VI, the Office of the Victorian Information Commissioner (OVIC)6 attempts to informally resolve the review before proceeding to a formal review process and OVIC review decision.
The decision to attempt informal resolution is discretionary. Not all review applications will be suitable for informal resolution.
Informal resolution involves identifying what the applicant is seeking or trying to achieve with their freedom of information request and liaising with both the applicant and the agency to try and find a resolution that works for both parties.
More specifically, the informal resolution process involves finding and presenting resolution options to both parties for their consideration, including:
- providing a preliminary view to a party on the merits of a review application supported by a published de-identified decision made by the Information Commissioner or Public Access Deputy Commissioner, or OVIC guidance material;
- providing the parties with an opportunity to respond to a preliminary view and provide any further information;
- providing the parties with an opportunity to narrow the scope of the review, clarify a request or provide further information regarding the basis for making a decision;
- providing an applicant with information about other options to obtain access to the information they seek;
- inviting an agency or Minister to disclose a document or make a fresh decision to disclose more documents or information to an applicant; and
- reviewing the document and establishing the information an applicant seeks is not in the document; or
- when it is likely the Information Commissioner or Public Access Deputy Commissioner will make the same decision as the agency, OVIC encourages an applicant to reconsider their application and provide them with the opportunity to discontinue their application
Positive outcomes of informal resolution include:
- the efficient resolution of a review application with both parties agreeing with the outcome;
- narrowing the scope of a review application and reducing the time required to finalise the review;
- an agency making a fresh FOI decision or releasing more documents under or outside of the Act; and
- an applicant gaining a better understanding of the matter or receiving advice about other ways to access the information they are seeking.
- Freedom of Information Act 1982 (Vic) sections 6G(1)(a) and 6G(1)(b).
- For example, the Information Commissioner’s privacy and information security functions are outlined in section 8A of the Privacy and Data Protection Act 2014 (Vic)
- Freedom of Information Act 1982 (Vic) section 6G(2) and section 6H.
- Freedom of Information Act 1982 (Vic) section 49H(1) and section 61I(3).
- The requirement to act with as little formality and technicality is a common requirement for civil and administrative tribunals to facilitate access to justice by conducting matters quickly and efficiently. For example, the Victorian Civil and Administrative Tribunal has a fair hearing obligation, which includes the requirement to conduct hearings with as little formality and technicality, speed and a proper consideration of the matters before it permit; Victorian Civil and Administrative Tribunal, ‘Our fair hearing obligation’, What VCAT does.
- Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner. Under Part VI, both the Information Commissioner and the Public Access Deputy Commissioner are responsible for conducting reviews of decisions made by agencies and Ministers. The Information Commissioner may delegate review functions to these staff under section 6R. This example collectively refers to the Information Commissioner, the Public Access Deputy Commissioner and staff as the OVIC unless otherwise stated.