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FOI and COVID-19 FAQs

Due to the coronavirus (COVID-19), many Victorian government agencies enacted business continuity plans and commenced working remotely from March 2020.

Since March 2021, despite the gradual return to office-based working arrangements, many agency officers continue to work remotely due to social distancing requirements. OVIC notes it is a matter for individual agencies to determine the working structure and location of its workforce; however, agencies must meet their statutory obligations under the Freedom of Information Act 1982 (Vic) (FOI Act).

While working remotely initially posed some challenges when administering the FOI Act, the Office of the Victorian Information Commissioner (OVIC) notes that many agencies rapidly adapted their work processes to best position themselves to meet their ongoing statutory obligations.

However, remote working arrangements, staff resourcing and the redeloyment of frontline agency staff to assist with COVID-19-related duties led to delays in the processing of freedom of information (FOI) requests by some agencies.

OVIC acknowledges a small number of agencies have acquired a backlog of requests and are experiencing ongoing challenges in the timely processing of FOI requests. OVIC encourages applicants to take a flexible and practical approach when consulting with an agency on the scope of an FOI request with a view to the agency being able to efficiently identify and process relevant documents.

To support agencies, in April 2020, OVIC 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.

Please note: These FAQs will be retired on 30 April 2021 as agencies return to office-based work arrangements in line with Victorian Government advice.

FOI and coronavirus (COVID-19) FAQs for agencies

While many agencies are gradually returning to office-based working arrangements, some agency officers may continue to work remotely. OVIC does not anticipate that agencies will be unable to access hard copy documents now that restrictions have eased. However, there may be limited circumstances where agencies still cannot access some of their documents because of working arrangements.

If that is the case, be open and transparent with applicants about your agency’s capacity to process FOI requests. Consider updating your agency’s website and other communication channels to advise of changed FOI practices to notify potential and existing applicants of your agency’s ability to process requests.

Where delays in processing a request cannot be avoided, explain the reason for the delay and provide updates to applicants where necessary and practicable. Agencies may consider seeking an extension of time from applicants as well.

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 requests, particularly in terms of potential delays.

You may consider asking the applicant for a short 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 for an extension of time, advise the applicant of their right to lodge a complaint with OVIC, or 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 VCAT’s COVID-19 response for more information.

Identify FOI requests that may not be able to be finalised in the statutory timeframe, 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.

Unless there are exceptional circumstances, agencies must not defer or not accept FOI requests.

Be open and transparent with applicants about your agency’s capacity to process FOI requests, and any anticipated delays. Explain any limitations, delays or other issues that may affect the applicant’s FOI request. 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 or concerns regarding your agency’s ability to meet its obligations under the FOI Act and Professional Standards with your agency in the first instance. You may also contact OVIC to discuss how we can best support your agency 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 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.

With COVID-19 restrictions easing and an increase in staff returning to office-based working arrangements, identify your capacity to process FOI requests (for example, do you have access to all documents in your agency?). Communicate this information to applicants so they are aware of your agency’s current operating environment and whether there may be any issues with processing requests.

Some agencies continue to experience delays in processing FOI requests following the lengthy disruption to working arrangements between March 2020 and March 2021.

OVIC understands some agency staff continue to work remotely and some staff are diverted from their usual duties to assist their agency or other agencies with COVID-19 related work. For some agencies, this may mean limited access or more time is required to access hard copy documents.

Where necessary, OVIC will consider requests from agencies for additional time to respond to requests for 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 due to the impact of 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.

It is a matter for agencies to make appropriate arrangements to ensure continuity for processing payments with changing working conditions.

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.

You should refer to your agency’s internal policy, 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).

Regardless of which method you use to verify their identifiy, 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 , 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.

If the Information Commissioner requests your agency to send documents claimed to be exempt under section 28, 29A, 31 or 31A, an OVIC staff member will be in touch with you to faciliate the secure electronic provision of those documents.

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.

Please note, agencies can now provide all documents subject to a review or complaint securely via OVIC’s File Share Platform. If you would like further information about OVIC’s secure File Share Platform, please contact us on 1300 006 842 or at reviews@ovic.vic.gov.au.

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