Section 6H - Functions of the Public Access Deputy Commissioner
Extract of legislation
|6H||Functions of the Public Access Deputy Commissioner|
|(1)||The Public Access Deputy Commissioner has the functions set out in section 6I(2) and any function conferred on the Information Commissioner under this Act other than—|
|(a)||a function conferred on the Information Commissioner by or under the Privacy and Data Protection Act 2014 or any other Act; or|
|(b)||a function of the Information Commissioner referred to in section 6I(1); or|
|(c)||a function of the Information Commissioner referred to in section 6R; or|
|(d)||issuing directions under section 6S; or|
|(e)||a function of the Information Commissioner referred to in section 63G.|
|(2)||The Public Access Deputy Commissioner must perform functions and exercise powers under this or any other Act with as little formality and technicality as possible.|
The Public Access Deputy Commissioner’s functions
The Public Access Deputy Commissioner has the same freedom of information (FOI) functions that the Information Commissioner has under the Act.1
However, there are some functions of the Information Commissioner that the Public Access Deputy Commissioner does not have. The Public Access Deputy Commissioner cannot:
- perform a function under the Privacy or Data Protection Act 2014 (Vic), which means the Public Access Deputy Commissioner may only perform FOI functions;
- employ staff or engage contractors under section 6Q;
- develop or review Professional Standards under section 6U or section 6X;
- prepare reports under section 64, section 64A or section 65AB;
- provide advice, at the request of the Minister, about the operation and administration of the Act;
- investigate public interest complaints that relate to conduct relevant to the functions of the Information Commissioner,2 or
- commence proceedings for an offence under the Act without authorisation from the Information Commissioner in accordance with section 63G(1)(c).
Performing functions with as little formality and technicality as possible
The purpose of section 6H is to make sure the Public Access Deputy Commissioner acts informally and flexibly under the Act, where appropriate. The Public Access Deputy 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.4
Reducing formality and technicality may involve:
- using plain language;
- developing less formal processes or procedures to increase access to services and benefits; and
- being flexible in 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)5 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 OVIC review decision, 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 FOI 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 review 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 obtain the information they seek.
- Freedom of Information Act 1982 (Vic), section 6H(1).
- Freedom of Information Act 1982 (Vic) sections 6H(1) and 6I(1).
- Freedom of Information Act 1982 (Vic) section 6H(2).
- 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.