Section 6U - Development of professional standards
Extract of legislation
|6U||Development of professional standards|
|(1)||The Information Commissioner may develop professional standards relating to—|
|(a)||the conduct of agencies in performing functions under this Act; and|
|(b)||the administration of this Act in relation to agencies and the operation of this Act by agencies.|
|(2)||The professional standards may include standards for the processing of requests under this Act, including standards for—|
|(a)||assistance for applicants in making requests; and|
|(b)||identification of relevant documents; and|
|(d)||clear communication with applicants; and|
|(e)||timely decision-making, including extending time for making decisions on requests.|
|(3)||The professional standards must not be inconsistent with this Act.|
|(4)||Before publishing professional standards under section 6V the Information Commissioner must—|
|(a)||publish the draft professional standards on the Internet site of the Office of the Victorian Information Commissioner; and|
|(b)||notify, in writing, principal officers of agencies and any other relevant person that—|
|(i)||the draft professional standards have been published; and|
|(ii)||submissions may be made to the Information Commissioner on or before the date specified in the notice.|
|(5)||The date specified in a notice under subsection (4)(b) must be at least 28 days after the day on which the draft professional standards are published.|
|(6)||The Information Commissioner must take into account all reasonable submissions made under this section relating to the draft professional standards before publishing them under section 6V.|
Background to the Professional Standards
Section 6U gives effect to this FOI function by giving the Information Commissioner the power to develop Professional Standards.
The FOI Professional Standards apply to, and bind all, Victorian agencies subject to the Act.2 This includes local government, departments, statutory authorities, public hospitals, councils, TAFEs and universities, but not Ministers.3
For more information on who must comply with the Professional Standards, read section 6W.
There are 33 Professional Standards, based on 10 themes, relating to the conduct of agencies in performing functions under the Act, and the administration and operation of the Act by agencies.
The Professional Standards elaborate on obligations under the Act and articulate expectations for FOI practitioners when performing their FOI functions.
At a high level, the Professional Standards are organised in the following way and relate to:
- Access to government Information: Professional Standard Group 1 relates to proactive and informal release of information. The Professional Standards requires agencies to consider informal release where possible and ensure information statements published in accordance with Part II are available online where possible.
- Receiving a request: Professional Standard Group 2 relates to receiving a request. The Professional Standards relate to assisting applicants to make valid requests and modernising how the public may exercise their right to access government information under the Act (including by making an FOI request via email).
- Extensions of time: Professional Standard Group 3 clarifies when an agency may extend the time for deciding a request and ensures applicants are aware of why an extension is necessary and for how long the period is extended.
- Charges for access: Professional Standard Group 4 provides clarity around access charges, including providing certain information in an access charges notice and providing that notice within a specific period of time.
- Substantial and unreasonable diversion of resources: Professional Standard Group 5 relates to where an agency refuses an FOI request if it is satisfied processing the request would substantially and unreasonably divert the resources of the agency from its other operations. The Professional Standards clarify when to provide, and how much information to include in, a notice to refuse a request.
- Searching for documents: Professional Standard Group 6 recognises the importance of good record keeping by requiring an agency to ensure it keeps a record of its document searches.
- Practicability of consulting third parties: Professional Standard Group 7 relates to the practicability of consulting third parties when processing a request, including factors to consider and record keeping requirements.
- Decisions and reasons for decisions: Professional Standard Group 8 aims to ensure an applicant receives an informative decision letter which helps the applicant to understand how and why the agency made its decision.
- Resources, training and awareness: Professional Standard Group 9 requires Principal Officers to ensure their agency has the necessary resources and training in place to support FOI officers in carrying out their functions. It also seeks to improve cooperation from all agency officers, to improve how requests are managed and the time taken by an agency to respond to requests.
- Working with the Information Commissioner: Professional Standard Group 10 relates to working with, and assisting, the Information Commissioner. It includes considering preliminary views from OVIC, responding to requests for documents and information within agreed timeframes, and marking up documents clearly and legibly.
Why do we have Professional Standards?
The Professional Standards aim to ensure agencies administer the Act consistently with:
- the Act’s object – to extend as far as possible the right of the community to access information in the possession of an agency subject to the Act; and
- Parliament’s intention – that the provisions of the Act are interpreted to further its object and any discretions conferred by the Act are to be exercised as far as possible to facilitate and promote the prompt disclosure of information at the lowest reasonable cost.
The Professional Standards help to promote best practice in performing FOI functions by prescribing obligations. They give the Act a modern interpretation, both in practice and procedure.
The Professional Standards aim to:
- improve communication between agencies and applicants;
- help ensure agencies process FOI requests in a timely manner;
- clarify any unclear terms or tests in the Act; and
- assist agencies to interpret the Act in a modern way.
Developing Professional Standards
What the Professional Standards may cover
The Information Commissioner may develop Professional Standards relating to how agencies perform their functions under the Act, and how agencies administer and apply the Act.4
The Professional Standards may relate to how agencies process FOI requests, including:
- assisting applicants to make requests;
- identifying documents relevant to a request;
- communicating with applicants; and
- timely decision-making, including extending the time for making decisions on requests.5
The Professional Standards may cover various themes relating to FOI however they cannot be inconsistent with the Act.6
Consultation on draft Professional Standards
Before the Information Commissioner may publish binding Professional Standards, they must:
- publish draft Professional Standards on the Office of the Victorian Information Commissioner’s (OVIC) website;
- write to Principal Officers of agencies and any other relevant persons to notify them that the draft Professional Standards have been published; and
- invite submissions on the draft Professional Standards for at least 28 days from the day on which the draft Professional Standards are published.7
The purpose of this notification and consultation process is to promote transparency and participation in the development of the Professional Standards, and to help make sure they are fit for purpose. Consultation provides the opportunity for agencies and the public to identify and raise any concerns with the Information Commissioner before they finalise the Professional Standards.8
In consulting on draft Professional Standards, OVIC:
- invited the 21 agencies which process the largest number of FOI requests each year to provide preliminary views on what should be included in the Professional Standards;
- published a dedicated OVIC webpage inviting early submissions from any interested persons;
- invited OVIC’s Public Access Agency Reference Group9 to provide comments on an early draft of the Professional Standards;
- published draft Professional Standards on OVIC’s website and on the Engage Victoria consultation platform for a period of six weeks (from 25 March 2019 to 3 May 2019).
OVIC received 45 submissions on the draft Professional Standards, including:
- 42 submissions from agencies;
- 1 submission from a private sector organisation; and
- 2 submissions from members of the public.
Following public consultation in March and May 2019, OVIC considered all submissions received and published a summary of themes that the submissions raised and OVIC’s consideration and response to them. OVIC also published submissions where the person making the submission consented to OVIC doing so.
‘Taking into account’ all reasonable submissions
The Information Commissioner must ‘take into account’ all reasonable submissions made in relation to the draft Professional Standards before publishing the final version.10
‘Take into account’ means the Information Commissioner must consider or think carefully about all reasonable submissions received and decide whether to change the draft Professional Standards to address any questions, concerns, or suggestions that the submissions raise.
‘Take into account’ does not mean the Information Commissioner must accept all suggestions for changes to the draft Professional Standards.
For example, OVIC received 45 submissions during public consultation on draft Professional Standards in March and May 2019.
Following public consultation, OVIC published a summary of themes that the submissions raised, and OVIC’s consideration and response to them.
An example of feedback and OVIC’s consideration and response to it include:
- Feedback: Professional Standard 1.2 requires an agency to consider informal release of a document in its possession by facilitating access to the document or advising how the applicant can access the document. OVIC received feedback that it would be helpful to explain what ‘facilitate access’ means and how that is different to advising an applicant how the document may be accessed.
- OVIC’s response: OVIC explained its view that ‘facilitating access’ and ‘advising an applicant how the document may be accessed’ are different and to help explain this, OVIC inserted a noted under Professional Standard 1.2 which provides examples of how an agency may facilitate access to a document and how it may advise an applicant how the document may be accessed.
The Professional Standards and the Subordinate Legislation Act 1994
The Professional Standards are a legislative instrument, which means in developing and finalising them, the Information Commissioner must follow the procedures in the Subordinate Legislation Act 1994 (Vic) (Subordinate Legislation Act) in addition to the procedures in Part IB.
The Subordinate Legislation Act sets out the requirements and process to make legislative instruments, including:11
Exemption from requirement to undertake regulatory impact statement
Legislative instruments require the instrument maker to complete a regulatory impact statement, unless an exemption applies.16 The Professional Standards are exempt from the requirement to complete a regulatory impact statement because:
- the Professional Standards do not impose a significant economic or social burden on a sector of the public.17 The Professional Standards impose obligations on Victorian agencies subject to the Act and not on the public; and
- the significant formal consultation OVIC undertook with the public and agencies in developing and finalising the Professional Standards mirrors the regulatory impact statement process under the Subordinate Legislation Act.18
The Professional Standards (and Ministerial Professional Standards developed under section 6Y) have an ongoing exemption (except for the requirement to publish future Professional Standards in the Government Gazette) because the responsible Minister was satisfied that future Professional Standards would also be exempt.19
This means the Information Commissioner does not have to prepare a regulatory impact statement each time they update the Professional Standards, nor does the Information Commissioner have to apply for an exemption each time they wish to update the Professional Standards. However, the Information Commissioner must still follow the processes in sections 6U and 6V if they update the Professional Standards.20
The 2014 Victorian Attorney-General’s Professional Standards
On 1 September 2017, a significant suite of changes to the Act came into effect.21 Amongst other things, the changes to the Act gave the Information Commissioner the power to create binding FOI Professional Standards applying to agencies.
Before the 2017 amendments to the Act, the Minister responsible for FOI could create non-binding FOI Professional Standards.22 To do so, the Minister had to recommend making regulations under the Act to prescribe the Professional Standards.23 If the Professional Standards were not prescribed by regulation, then agencies were not bound by them.24
In 2014, the Victorian Attorney-General published FOI Professional Standards. However, these Professional Standards were not prescribed by regulation as required at the time and they therefore served as guidance only.25
The power for the Attorney-General to publish FOI Professional Standards was repealed in 2017 when the Information Commissioner was given the power to create FOI Professional Standards.
For these reasons, the Attorney-General’s Professional Standards are not in force and agencies should not rely on them. Agencies must have regard to, and comply with, the Information Commissioner’s FOI Professional Standards.
- Only the Information Commissioner can make Professional Standards under Part IB: section 6I(1)(b) and section 6H(1)(b).
- The Professional Standards commenced on 2 December 2019.
- However, the Premier may adopt Professional Standards for Ministers under section 6Y.
- Freedom of Information Act 1982 (Vic), section 6U(1).
- Freedom of Information Act 1982 (Vic), section 6U(2).
- Freedom of Information Act 1982 (Vic), section 6U(3).
- Freedom of Information Act 1982 (Vic), sections 6U(4) and 6U(5).
- The Information Commissioner must also review and amend the Professional Standards at least once in every 4-year period in accordance with section 6X.
- OVIC coordinates the Public Access Agency Reference Group which is a stakeholder group with FOI representatives from across the Victorian Government. The purpose of the Reference Group is to engage with agencies on OVIC’s work and agencies’ experiences, operating environments and ideas regarding the operation and administration of the Act.
- Freedom of Information Act 1982 (Vic), section 6U(6).
- See Part 2A of the Subordinate Legislation Act 1994 (Vic).
- Subordinate Legislation Act 1994 (Vic), sections 12E and 12H.
- Subordinate Legislation Act 1994 (Vic), section 12D(2).
- Subordinate Legislation Act 1994 (Vic), sections 12C and 12I.
- For example, section 12I(1)(a) of the Subordinate Legislation Act 1994 (Vic) requires the responsible instrument maker to publish the regulatory impact statements in the Government Gazette.
- Subordinate Legislation Act 1994 (Vic), section 12E(3).
- The Information Commissioner received an exemption certificate from the Special Minister of State under sections 12F(1)(a) and 12F(1)(g) of the Subordinate Legislation Act 1994 (Vic).
- Subordinate Legislation Act 1994 (Vic), section 12E.
- The ongoing exemption was made under section 4A(1)(c) of the Subordinate Legislation Act 1994 (Vic); Subordinate Legislation (Legislative Instruments) Regulations 2021, Schedule 3, clause 48.
- Freedom of Information Act 1982 (Vic), section 6X.
- Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic).
- Freedom of Information Act 1982 (Vic), section 6L(1), which was substituted by new Part IB under the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic).
- Freedom of Information Act 1982 (Vic), section 6L(4), later amended by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic).
- Freedom of Information Act 1982 (Vic), section 6M, later amended by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic).
- Victoria, Parliamentary Debates, Legislative Assembly, 23 June 2016, 2870 (Martin Pakula, Attorney-General), in the second reading speech for the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016, The Hon. Martin Pakula notes the Professional Standards under Part IB in 2016 are not binding on agencies unless they have been prescribed by regulation, and at the time, there were no standards prescribed by regulation.