Practice Note 1: The Professional Standards
The Professional Standards (standards) are issued in accordance with Part IB of the Freedom of Information Act 1982 (Vic) (the Act).
There are 33 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.
This practice note details the rationale for each of the standards. All legislative references are to the Act, unless otherwise stated.
The standards are binding and apply to every Victorian agency subject to the Act. This includes government departments, statutory authorities, public hospitals, councils, TAFEs and universities. The standards do not apply to Ministers.
Section 6W(1) states the principal officer of an agency, and any officer or employee of the agency concerned in the operation of the Act, must comply with the standards. As such, it is the responsibility of a principal officer of an agency to ensure any officer or employee concerned with the operation of the Act complies with the standards.
The overall purpose of the standards is to ensure the Act is administered by agencies 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 so as to further its object and any discretions conferred by the Act are exercised as far as possible to facilitate and promote the prompt disclosure of information at the lowest reasonable cost.
The standards aim to improve communication between agencies and applicants, ensure applications are processed in a timely manner, provide clarity to certain provisions of the Act, and ensure the Act is given a modern interpretation, both in practice and process.
Standard 1 – Access to government information
Providing the public with access to government information is an important mechanism for enhancing government accountability and transparency in a representative democracy.
Agencies are encouraged to proactively disclose government information, and where possible, release information outside the Act. This is consistent with section 3, section 16 and OVIC practice notes on informal release and proactive release.
The standards provide further guidance in relation to existing obligations and give further effect to those obligations, including:
- section 3(1)(b) – the Act’s object to create a general right of access to information in the possession of agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the protection of private and business affairs of persons;
- section 3(2) – Parliament’s intention that the provisions of the Act are interpreted so as to further the object of the Act and that any discretions conferred by the Act are exercised as far as possible to facilitate and promote the prompt disclosure of information at the lowest reasonable cost;
- section 16(1) – agencies must administer the Act with a view to making the maximum amount of government information available promptly and inexpensively;
- section 16(2) – nothing in the Act is intended to prevent or discourage agencies from publishing or giving access to documents, including exempt documents where they can properly do so.
Standards 1.1 and 1.2 require an agency to consider whether a document requested by an applicant under the Act can properly be provided outside the Act (i.e. informally) to the applicant. If access to the document can properly be provided, then the agency is required to:
- facilitate access to the document (by providing a copy, arranging an inspection or otherwise providing access to the document); or
- tell the applicant how they can access it (for example, under an existing statutory scheme or for purchase).
In determining whether a document can be properly disclosed outside the Act, agency officers should ensure they have the authority of their agency to release the document.
Standard 1.3 requires a principal officer to make sure information statements published in accordance with Part II of the Act are available on their agency’s website, if it has one. This standard promotes accessibility by ensuring the relevant statements are available online (not just an annual report), in line with community expectations.
Standard 2 – Receiving a request
The standards ensure agencies continue to facilitate and promote access to government information promptly and at the lowest reasonable cost. They recognise the Victorian community expects agencies to offer modern methods for accessing government services and exercising their right to access government information under the Act.
For example, Standard 2.1 requires an agency to provide an option to make a request by email. This recognises applicants should not be required to rely solely on postal services to make a request where a cheaper, faster and more convenient communication method exists.
Similarly, Standard 2.2 requires an agency to take reasonable steps to provide a payment option for paying the application fee in line with accepted payment methods the agency provides for services of a similar financial sum. Applicants are often required to pay an application fee using a cheque, bank cheque or money order, which is at the expense of the applicant.
This standard recognises where an agency already provides cheaper and more convenient payment methods for other services it provides, it should take reasonable steps to offer the same payment methods for paying an application fee.
This ensures an applicant is not compelled to incur additional costs by obtaining a cheque, bank cheque or money order, which is in line with the object of the Act – promoting access to information at the lowest reasonable cost. Similarly, these payment methods are becoming outdated by new and more efficient technologies.
Standard 2.3 clarifies an agency cannot refuse to process a request simply because an applicant did not use the agency’s pro forma application form. An agency is free to develop its own application form for making a request and may encourage an applicant to use it. However, an agency cannot refuse to process an otherwise valid request simply because the applicant did not use the agency’s form.
Standard 2.4 requires an agency to identify invalid requests early and notify the applicant. As the statutory time frame does not start until a valid request is received, this standard recognises the potential disadvantage to an applicant who may not be aware their request is not valid for some time. This standard ensures agencies make an applicant aware their request is not valid earlier in the process, and the reason why, so they can make a valid request that the agency may process.
Standard 2.5 clarifies when an agency may refuse to comply with a request. It recognises an agency should not be required to keep open a request that is not valid where the agency complies with Standard 2.4, but the applicant fails to make the request valid after 21 days from the date of the notice under Standard 2.4. This standard provides agencies certainty that a request does not need to remain ‘on foot’ indefinitely where reasonable steps have been taken to assist an applicant.
Standard 3 – Extensions of time
Standard 3.1 clarifies when an agency may extend the time for deciding a request under section 21(2)(a) of the Act due to third party consultation. An agency can only extend the period for deciding a request by no more than 15 days where an agency is, or will be, undertaking actual third party consultation, as opposed to anticipated consultation. This standard clarifies what ‘if consultation is required’ means under section 21(2)(a) of the Act and ensures that agencies do not extend the time where third party consultation is speculative or won’t be undertaken
Standard 3.2 will ensure an applicant is aware of why the period for deciding a request has been extended or further extended and by how many days. An agency is already required under section 21(4) to notify an applicant in writing of an extension of time. This standard sets the minimum level of detail to be provided to the applicant in the notification and will ensure the applicant is aware of the circumstances and reasons for the extension.
Standard 4 – Charges for access
If an agency believes a charge for access is going to exceed $25 or such greater amount prescribed by the Freedom of Information (Access Charges) Regulations 2014, then under section 22(3) an agency must notify an applicant of that fact and ask the applicant whether they want to continue with the request. In this notice, under section 22(4) an agency is also required to tell an applicant they have to pay an access charges deposit of a prescribed amount or at a prescribed rate. Similarly, where an applicant has to pay an access charges deposit, under section 22(6) the agency must, if requested by the applicant, discuss with the applicant practicable alternatives for altering the request or reducing the anticipated charge.
Standard 4.1 aims to ensure an applicant is informed about the access charges deposit the agency is asking them to pay, and that the applicant can request to discuss practicable alternatives to reduce those charges. It recognises the applicant is entitled to know how much the total estimated access charges and associated deposit will be and on what basis the estimated access charges have been calculated.
Standard 4.1 also clarifies when an agency may finalise a request without processing it. It recognises an agency is entitled to finalise a request where the agency has provided a notification under section 22(3) of the Act, and an applicant has not:
- contacted the agency about whether they want to proceed with the request;
- contacted the agency to discuss options to reduce or waive the anticipated access charges; or
- paid the deposit by the date indicated in the notification.
Standard 4.2 requires an agency to provide the notice under section 22(3) within 21 days of receiving a valid request. This standard requires agencies to consider whether access charges may be applicable early, including whether a deposit is required. As the statutory timeframe effectively resets once an access charges deposit is paid, this standard recognises the potential disadvantage to an applicant who may not be aware their request attracts an access charges deposit for some time. This standard ensures an applicant is aware of an access charges deposit within a reasonable timeframe, so the applicant can pay the deposit or amend the request to reduce the charge.
Standard 4.3 requires an agency to take reasonable steps to provide a payment option for paying the application fee in line with accepted payment methods the agency provides for services of a similar financial sum. Applicants are often required to pay access charges using a cheque, bank cheque or money order, which is at the expense of the applicant. This standard recognises where an agency already provides, cheaper and more convenient payment methods for other services it provides, it should take reasonable steps to offer the same payment methods for paying access charges.
This takes steps to ensure an applicant is not compelled to incur additional costs by obtaining a cheque, bank cheque or money order, which is in line with the object of the Act – promoting access to government information at the lowest reasonable cost. Similarly, these payment methods are becoming outdated by new and more efficient technologies.
Standard 5 – Substantial and unreasonable diversion of resources
Under section 25A(1), an agency may refuse to provide access to requested documents without processing the request where the agency is satisfied processing the request would substantially and unreasonably divert the resources of the agency from its other operations.
Before doing so, however, under section 25A(6), the agency must notify the applicant in writing of their intention to refuse to process the request and invite the applicant to consult. The agency must give the applicant a reasonable opportunity to consult so the applicant may make amendments to the request so it can be processed (section 25A(6)(b)). In consulting, the agency must reasonably provide any information that would help the applicant amend their request (section 25A(6)(c)).
Standard 5.1 requires an agency to take reasonable steps to notify an applicant under section 25A(6) of the Act of its intention to refuse a request under section 25A(1) within 21 days of receiving a valid request. As the statutory time frame effectively pauses once a section 25A(6) notice has been given to the applicant, this standard recognises the potential disadvantage to an applicant who may not be aware their request will not be processed within the normal statutory timeframe. This standard ensures an applicant is aware their request cannot be processed because of section 25A(1) within a reasonable timeframe, so the applicant can consult with the agency to amend the request so it may be processed.
In addition to the requirements of section 25A(6), Standard 5.2 requires an agency to explain why the applicant’s request would substantially and unreasonably divert the resources of the agency from its other operations, and provide 21 days for the applicant to respond to the agency’s notice. By explaining why the request cannot be processed because of section 25A(1), an applicant is able to meaningfully consult with the agency to amend the request so it may be processed.
Standard 5.3 requires an agency to keep a record of any consultation undertaken under section 25A(6). This standard seeks to improve record keeping practices and ensure the agency is able to provides reasons for its decision in the case of a complaint or review.
Standard 6 – Searching for documents
Where an agency searches for documents in response to a request, it must ensure that the search is thorough and diligent. Under section 27(1)(e), an agency is required to inform an applicant if, after a thorough and diligent search, a document relevant to the request cannot be located and a complaint can be made.
Standard 6.1 recognises the importance of good record keeping by requiring an agency to ensure it keeps a record of searches undertaken – where a search for a document is conducted. A record of searches must include where and how the agency searched for the document and may take the form of a search record template, email response or a file note. This in turn, will enable an agency to ensure a thorough and diligent search has been completed by agency officers, enable the agency to accurately calculate access charges where applicable, and respond to complaints made under section 61A.
Standard 7 – Practicability of consulting third parties
An agency may be required to consult with third parties when applying certain exemptions under Part IV of the Act. Third party consultation provisions recognise that third parties should be consulted about the disclosure of their information and have their views considered by an agency in its decision. However, the Act anticipates it may not be practicable to notify and seek the views of a third party in every case.
Standard 7.1 identifies some factors an agency may consider when determining whether it is practicable to notify and seek the views of a third party. The list is inclusive rather than exhaustive, as determining practicability will depend on the facts and circumstances of each matter. The standard is aimed at providing guidance to an agency while ensuring practicability is properly considered.
Standard 7.2 requires an agency to keep a record of why it is not practicable to consult with a third party, where relevant. Similarly, where an agency does consult with a third party, Standard 7.3 requires the agency to keep a record of certain information, including who was notified and their responses.
The note to Standard 7.3 encourages an agency to ensure a third party is aware of the applicable exemption and what must be established for the exemption to apply to the information or document. This is so the third party may better understand what is required to make out the relevant exemption and ensure their views are relevant. Similarly, this means a decision maker will be better informed as to the third party’s reasons for objecting, which will assist them in making their decision. A third party’s views are not determinative and are merely a factor to be considered.
Standards 7.2 and 7.3 seek to improve record keeping when a third party is consulted or when it is not practicable to consult with a third party. This will make it easier to refer back to a third party’s views on each request, where required, and will demonstrate an agency has meaningfully and comprehensively consulted with the third party.
Standard 8 – Decisions and reasons for decisions
A decision of an agency may be made on behalf of the agency by the principal officer of the agency or, by an officer of the agency acting within the scope of the authority exercisable by them in accordance with arrangements approved by the principal officer of the agency (section 26(1)). The title of section 26 refers to ‘authorised persons’; as such the standards refer to an agency officer with the power to make decisions under the Act as an ‘authorised officer’.
Where a decision is made that an applicant is not entitled to access a document in accordance with a request, or no such document exists, under section 27(1) an agency must explain to the applicant the findings on any material questions of fact, refer to the material on which those findings were based, and state the reasons for the decision. Similarly, under section 27(1)(e), an agency is required to inform an applicant if, after a thorough and diligent search, a document relevant to the request cannot be located.
Standard 8.1 prohibits other agency officers, including a principal officer, from directing an authorised officer to make a particular decision under the Act, where that officer is properly exercising their statutory decision-making power. This ensures authorised officers are able to carry out their statutory obligations independently and without influence.
Standard 8.2 requires an agency to explain in its decision to an applicant its reasons for why each exemption or exception applies and in doing so ensure it addresses each limb of the relevant exemption or exception.
Standard 8.3 requires an agency to generally describe the documents discovered and outline whether they are being released in full, released in part, or denied in full. Where an agency cannot locate a document or a document does not exist in relation to a request or part of a request, Standard 8.4 requires an agency to provide a summary of the searches conducted and, where practicable, explain why the relevant document could not be located.
An exception to Standards 8.2, 8.3 and 8.4 is where the agency has made a decision under sections 27(2) or 33(6) of the Act. These provisions allow an agency to make a decision in terms that neither confirm nor deny the existence of a document in certain circumstances.
The standards aim to ensure an applicant receives an informative decision letter, which outlines relevant facts and analysis the agency relies on in making its decision. This will mean applicants better understand, and potentially accept, an agency’s decision and in particular, understand why an exemption or exception has been relied on.
In addition, applicants will better understand the general number and type of documents discovered in response to their request, as well as how the search was conducted.
Standard 9 – Resources, training and awareness
Administering the Act requires an agency to have in place sufficient resources to process requests, along with training and an awareness of the Act across the agency. The standards seek to recognise the importance of officers who process requests by requiring principal officers to ensure their agency has the necessary resources and training in place to support those officers in carrying out their functions. Similarly, the standards seek to improve cooperation from all agency officers, to improve how requests are managed and the time taken by an agency to respond to requests.
Standard 9.1 requires a principal officer of an agency to ensure their agency has the necessary resources, authority and procedures in place to be able to meet the agency’s statutory obligations under the Act. This includes:
- being sufficiently resourced to receive and process requests, as and when required, within the required statutory time (‘sufficiently resourced’ can refer to the number of staff as well as proper comprehension of the Act and how to administer it by staff);
- the necessary software or systems to enable officers to process requests (for example, database for recording requests, redaction software);
- internal policies to enable officers to carry out their functions across the agency (to ensure the proper, efficient and consistent processing of requests across the agency); and
- anything else reasonably necessary for the agency to carry out its statutory obligations in an effective and efficient manner.
Standard 9.2 requires a principal officer to ensure, or be actively working towards ensuring, all officers who are responsible for responding to requests have the appropriate skills and training to perform their responsibilities.
Similarly, Standard 9.3 requires a principal officer to ensure officers who make decisions under the Act are properly authorised in accordance with section 26(1). This ensures officers are properly trained, skilled and authorised to make a decision under the Act.
Standard 9.4 requires a principal officer to ensure all officers are informed about the agency’s statutory obligations under the Act. This standard seeks to ensure all agency officers (including those not responsible for processing requests) are aware of the agency’s obligations under the Act.
Similarly, Standard 9.5 requires a principal officer to ensure all officers are aware they have a duty to assist and cooperate with officers who are responsible for processing requests under the Act. This standard seeks to ensure those officers responsible for processing requests receive proper cooperation from other officers in the agency when processing a request (for example when an authorised officer requests a different area in an agency to search for, and provide, documents subject to a request).
Standard 10 – Working with the Information Commissioner
An agency must assist, and cooperate with, the Information Commissioner and the Public Access Deputy Commissioner (the Commissioners) in relation to reviews and complaints received by the Information Commissioner under Part IV and Part VIA of the Act. The standards seek to identify ways in which an agency can assist the Information Commissioner by:
- assisting the Commissioners in their attempts to informally resolve a review or complaint;
- considering a preliminary view provided by the Commissioners during a review;
- responding to requests for documents and information from the Commissioners by the required date; and
- marking up documents subject to a review, clearly and legibly to indicate exempt matter and the applicable exemption.
The standards seek to increase the number of reviews and complaints resolved informally by the Commissioners. They also provide an opportunity for an agency to respond to a preliminary view by providing additional information or submission in support of their original decision.
The standards also seek to reduce the time required for the Commissioners to conduct a review under Part IV of the Act by having all of the required information, submissions and marked up documents from agencies on time. This is consistent with the requirement for the Commissioners to conduct a review in a timely, efficient and fair manner, with as little formality and technicality as possible, under section 49H(1).