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FOI and COVID-19 FAQs

Due to the coronavirus (COVID-19), many Victorian government agencies are working remotely. Working remotely can be a challenge when administering the Freedom of Information Act 1982 (Vic) (FOI Act), however agencies must continue to meet their statutory obligations under the FOI Act.

The Office of the Victorian Information Commissioner (OVIC) understands these unique times require flexibility when processing freedom of information (FOI) requests, as there are likely to be delays in processing new and existing requests. OVIC expects flexibility will be required for FOI requests received between 16 March 2020 and 30 September 2020. This period may be extended, if necessary.

Frontline agencies such as public health service providers, emergency service providers and other agencies whose FOI practitioners are deployed to assist the agency or other agencies with other duties may be particularly affected by delays in processing FOI requests.

OVIC has developed frequently asked questions (FAQs) for FOI practitioners. The FAQs cover topics such as document searches, delays in processing requests, where to seek assistance, and OVIC reviews and complaints.

Providing feedback

OVIC intends to update these FAQs to reflect the changing FOI operations landscape. If you have any feedback or would like to suggest an additional question to include in the FAQs, please contact us.

FOI and coronavirus (COVID-19) FAQs for agencies

OVIC acknowledges that not all documents held by your agency will be accessible for staff working remotely. Identify which documents, document management systems and other record keeping systems you have access to remotely (for example, in a staff member’s email inbox, in a digital document storage system, or on a shared network drive). Depending on the level of access to these systems, you may still be able to carry out some document searches.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances. Consider updating your agency’s website and other communication channels to advise of changed FOI practices due to COVID-19 to notify potential and existing applicants of your agency’s ability to process requests.

For particular requests, explain why you cannot conduct document searches (for example, the requested document is in hard copy only and you do not presently have access to it) and provide updates where necessary and practicable.

You may consider asking the applicant to withdraw their current request and make the same request at a later date. Similarly, if some documents relevant to the request cannot be accessed, invite the applicant to rescope their request to documents which can be located. The applicant may make another request for those documents at a later date. If you invite the applicant to withdraw or rescope their request and make another request at a later date, it is good practice to waive the application fee for the second request.

You may also consider seeking an extension of time, for example for four weeks, within which to process the request. Before the due date expires, update the applicant on the documents that cannot be accessed and consider whether another extension of time is required.

Keep in mind Professional Standards 6.1 and 8.4 which require searches to be recorded and communicated to applicants in certain circumstances.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances. Advise the applicant which document or documents you located, and the reasons why you cannot locate the remaining documents (for example, the requested document is in hard copy only and you do not presently have access to it).

If you cannot locate some of the requested documents because you are working remotely, you may consider asking the applicant to narrow the scope of their current request to exclude those documents and invite them to make another request for the excluded documents at a later date. If you do, it is good practice to waive the application fee for the second request. Excluding the documents you cannot locate means you may assess the documents you have located and provide a decision to the applicant as soon as practicable.

If the applicant does not wish to narrow the scope of their request, seek a reasonable extension of time in accordance with sections 21(2)(b) and 21(3) of the FOI Act and provide updates to the applicant where necessary and practicable.

When you receive a new FOI request, consider whether you have or can obtain access to the requested documents or information. If you do have access, you must first consider whether the documents or information can be released outside the FOI Act (either the entire request or in part) in accordance with Professional Standards 1.1 and 1.2.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances. Explain any limitations, delays or other issues that may affect the applicant’s FOI request. Depending on your agency’s capacity and circumstances, you may consider asking the applicant to withdraw or close the current request and make the same request at a later date. If you do, consider waiving the application fee for the second request.

Alternatively, you may consider asking the applicant for a reasonable extension of time in which to process the request in accordance with sections 21(2)(b) and 21(3) of the FOI Act.

If you do not receive the applicant’s agreement to withdraw the current request or for an extension of time, advise the applicant of their right to seek review under section 53 of the FOI Act by the Victorian Civil and Administrative Tribunal (VCAT) on the basis of a deemed refusal. If you notify the applicant of their VCAT appeal rights, note any limitations on accessing VCAT services during the COVID-19 pandemic (see https://www.vcat.vic.gov.au/news/coronavirus-covid-19-response).

For FOI requests currently on foot, consider whether you have or can obtain access to the requested documents or information. If you do have access, you must first consider whether the documents or information can be released outside the FOI Act (either the entire request or in part) in accordance with Professional Standards 1.1 and 1.2.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances. Explain any limitations, delays or other issues that may affect the applicant’s FOI request. Depending on your agency’s capacity and circumstances, you may consider asking the applicant to withdraw or close the current request and make the same request at a later date. If you do, consider waiving the application fee for the second request.

Alternatively, you may consider asking the applicant for a reasonable extension of time in which to process the request in accordance with sections 21(2)(b) and 21(3) of the FOI Act.

If you do not receive the applicant’s agreement to withdraw the current request or for an extension of time, advise the applicant of their right to seek review under section 53 of the FOI Act by the Victorian Civil and Administrative Tribunal (VCAT) on the basis of a deemed refusal. If you notify the applicant of their VCAT appeal rights, note any limitations on accessing VCAT services during COVID-19 (see https://www.vcat.vic.gov.au/news/coronavirus-covid-19-response).

Identify FOI requests that may not be able to be finalised due to staff working remotely, early, so you may advise the applicant of your agency’s capacity and circumstances as soon as possible. Otherwise, continue working through requests according to your agency’s internal processes and procedures for prioritising requests.

An FOI request must meet the requirements of section 17 of the FOI Act before an agency is required to accept and begin processing it. Obligations under the FOI Act and the Professional Standards still apply in light of COVID-19. However, both agencies and applicants should take a flexible and practical approach to managing requests.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances. Explain any limitations, delays or other issues that may affect the applicant’s FOI request. Depending on your agency’s capacity and circumstances, you may consider asking the applicant to withdraw or close any current requests and make the same request at a later date. If you do, consider waiving the application fee for the second request.

Alternatively, you may consider asking the applicant for a reasonable extension of time in which to process the request in accordance with sections 21(2)(b) and 21(3) of the FOI Act.

You should discuss FOI business continuity concerns with your agency in the first instance. You may also contact OVIC to discuss how we can best support you in these unique times and provide general FOI advice.

Where your agency clearly explains the reasons for seeking an extension of time to provide exempt documents or a written submission, for example, OVIC will endeavour to support your agency and provide a reasonable extension of time.

OVIC appreciates that the challenges agencies face when working remotely are heightened in smaller agencies, with fewer FOI resources and staff. Consider contacting OVIC to discuss how we can support you.

Identify your capacity to process FOI requests while working remotely (for example, do you have access to internal systems?). Identifying your current capabilities will help you identify whether you can process requests, or if there will be delays in processing requests. Use this assessment to advise applicants, so they are aware of your current operating environment.

OVIC appreciates these are unique times, and it is possible that FOI and other staff may be diverted from their usual responsibilities to assist the agency or other agencies respond to COVID-19.

Obligations under the FOI Act and the Professional Standards still apply in light of COVID-19. However, both agencies and applicants should take a flexible and practical approach to managing requests.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances. Explain any limitations, delays or other issues that may affect the applicant’s FOI request. Don’t forget, you may seek extensions of time where appropriate.

OVIC understands agencies have successfully moved to working remotely. However, OVIC appreciates some agencies are still experiencing delays in processing requests and accessing hard copy documents due to working remotely. Where necessary, OVIC will give agencies additional time to respond to requests for additional information, including submissions.

OVIC urges agencies not to rely unnecessarily on section 25A(1) of the FOI Act to refuse to grant access to an applicant’s FOI request at this time due to COVID-19.

This provision, which provides for an agency to refuse a request on grounds processing the request would involve a substantial and unreasonable diversion of the agency’s resources from its other operations, should not be relied upon by agencies during this time without the substantial and unreasonable size and nature of work involved in processing the request being unmanageable.

While the impact of COVID-19 will likely be a compounding factor, OVIC considers this provision will not necessarily be engaged on the basis of an agency’s changed working and operational environment alone.

OVIC appreciates that many agencies are working remotely, which means limited or no access to Australia Post mail. This may impact agencies’ ability to process application fee or access charges payments received by cheque.

Be open and transparent with applicants about your agency’s capacity to process FOI requests in the present circumstances, including processing payments. Explain any limitations, delays or other issues that may affect the applicant’s FOI request.

OVIC encourages agencies to take a flexible approach to accepting payment of application fees and access charges, taking into consideration the circumstances of the applicant.

Where possible, process payments electronically (for example, by credit card) in accordance with Professional Standards 2.2 and 4.3. If your agency can receive online requests, direct applicants to make their request online and pay the application fee electronically.

OVIC has not been advised of any agency or business unit that is completely closed or shut down. Agencies must continue to meet their statutory obligations under the FOI Act and the Professional Standards, including receiving and processing FOI requests. For more information, please refer to What should I do if my agency receives a new FOI Request? and What should I do about FOI requests that are currently being processed?

You should refer to your agency’s internal processes, if any, regarding how to verify an applicant’s identity. Some agencies may require different levels of verification to be satisfied of an applicant’s identity before providing access to documents.

Generally, you may consider requesting the applicant to send certified copies of identification documents (such as a drivers licence, health care card, medicare card, student ID).

If it is not possible to receive certified copies of identification documents given current government restrictions on being in public, you may consider requesting multiple forms of identification documents (including photo identification) to verify an applicant’s identity.

Regardless of which method you use to verify their identity, you must satisfy yourself that the person requesting access to the relevant documents is who they say they are.

The COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020 were made on 19 May 2020. Under these Regulations, the Information Commissioner may now request documents claimed to be exempt under section 28, 29A, 31 or 31A be provided to OVIC for inspection by secure electronic means.

OVIC has implemented a new secure file sharing platform to facilitate the secure exchange of documents subject to the Regulations. OVIC will contact relevant agencies with further information on the provision of documents via OVIC’s new secure file sharing platform.

OVIC must destroy the documents as soon as practicable after inspecting them. We will tell your agency in writing when the inspection is complete and the documents have been destroyed.

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