Informal release of information
This practice note provides an overview of process, benefits, and limitations of informally releasing government information. All legislative references are to the Freedom of Information Act 1982 (Vic) (the Act) unless otherwise stated.
WHAT IS INFORMAL RELEASE?
Informal release involves an agency receiving an information access request and releasing the requested information or document, either in full or in part, outside the Act. This is also known as administrative release. For example, an agency may establish an access arrangement for commonly requested information or documents, where an individual does not need to make a request under the Act.
Informal release can be a simpler and more efficient process for an agency than responding to a request under the Act, reduce the need for formal access requests, and provide agencies with flexibility in how they deal with requests for government information. It also complements the objective of the Act to make government information available to the public promptly and inexpensively.
The Act provides for informal release under section 16(2), which notes that nothing in the Act should prevent an agency from providing a person with access to documents outside the Act, where it is possible and lawful to do so.
Further, the Professional Standards require an agency to consider whether a document in its possession, requested under the Act, can properly be provided outside the Act, and if so, facilitate access or otherwise advise how an applicant can access the document. This is discussed further below.
WHEN TO RELEASE INFORMATION OR DOCUMENTS INFORMALLY
Where an individual makes a request under the Act, Professional Standard 1.1 requires agencies to consider whether the requested document can be properly provided to the individual outside the Act. ‘Properly’ refers to an agency ensuring it is authorised to provide access to the relevant document and there are no prohibitions or restrictions on its release (for example secrecy provisions, a court order or privacy considerations).
When considering whether information or a document can be informally released, agencies may have regard to a number of factors, including:
- who is requesting the document and for what purpose – for example, if the information relates to the personal affairs of the applicant, it may be appropriate to informally release;
- the nature of the information or document – for example whether the document contains personal, sensitive, or commercial sensitive information;
- whether the document could be provided if certain information was deleted (for example personal, sensitive, or commercial sensitive information) and the individual agrees to the information being deleted from the document;
- any statutory secrecy provisions or other restrictions (for example a court order) that may prevent the release of the information or document; and
- the functions and activities of the agency – information or documents relating to routine functions or activities may be appropriate for informal release.
Where they are not sensitive, agencies should consider the informal release of information or documents they hold that relate to their usual functions and operations. Where a document relates to a commercial matter (a tender process or procurement) it may still be appropriate for informal release with certain information deleted from the document.
If a document can be provided outside the Act, under Professional Standard 1.2, the agency must either:
- facilitate access to the information or document; or
- advise the individual how the information or document can be accessed. This may include providing the individual with a copy, arranging an inspection or viewing, or otherwise providing access to the information or a document. The agency may also advise the individual how access can be obtained via another method, for example a statutory release scheme or by purchase.
Agencies should promote the availability of informal access to information on their website.
CONSIDERATIONS FOR INFORMAL RELEASE
Form of release
Informal release allows an agency to be flexible in the way in which it releases information or a document. For example, an agency may release information informally by telephone, email, letter or in person. Similarly, access to a document may be provided in full or with certain information deleted with the agreement of the individual seeking access.
Unlike a request made under the Act, there is no time limit for an agency to provide access to information or documents outside the Act. Nonetheless, when informally releasing documents, agencies should endeavour to do so promptly, and actively engage with the individual seeking access. This may involve providing an estimated timeframe for release, or coming to an agreement about the time in which the agency will provide access.
If an agency decides informal release would take a substantial amount of time, it should discuss other options for access with the individual seeking access (for example, making a formal request) to ensure they are aware of statutory time frames and their review and complaint rights under the Act.
Fees and charges
There is no prescribed fee for requesting information outside the Act. Generally, agencies should aim to release information for free. However, there may be instances where this is not appropriate, for example where there is a large volume of documents. In those circumstances, agencies could consider providing access in an alternative form, such as allowing the individual to view the information or documents at the agency’s offices and making copies of documents at their own expense. Noting this, there is nothing prohibiting an agency from charging the reasonable costs associated with providing access informally.
Agencies should note that a document that contains information that is available for purchase by the public in accordance with arrangements made by an agency is not subject to the Act (section 14(1)(b)). For example, if an agency has an established process for releasing a certain class of documents to the public outside the Act, subject to a fee, those documents are not subject to the Act.
Conditions on access and use
Documents released under the Act are released without any conditions or restrictions on their future use or further dissemination. Similarly, the Act does not impose limits on how documents or information informally released may be used. Agencies should keep this in mind when considering the informal release of information or documents.
Authority to release information
Agency officers providing informal release should ensure they have the appropriate authority, on behalf of their agency, to do so.
Informal release does not provide the individual seeking access with review or complaint rights available under the Act. If the individual indicates they would like the opportunity for independent review if refused access to certain information or documents, the agency should inform the individual their request may be appropriately made under the Act.
Protection from liability
The protections against defamation or breach of confidence under section 62 do not apply when documents or information are informally released. However, this should not be seen as a barrier to the as these protections do not have general application and will only apply when relevant.
When considering informal release of personal information, agencies should consider the Information Privacy Principles under Privacy and Data Protection Act 2014 (Vic) (PDP Act) and ensure they have the authority under the PDP Act or other legislation to release or publish any personal information. In most instances documents containing personal information will not be appropriate for informal release unless there is a legislative requirement for it to be published.
Recording decisions to release information informally
Agencies should consider keeping a record of documents it makes available through informal release, including any conditions attached to the release and relevant considerations to support the decision to release the documents informally. Record can be useful in determining if a document has been previously released, or is being routinely requested.
If a request cannot be dealt with informally
In some circumstances, after attempting to respond to a request informally, it may not be possible for agencies to deal with the request. For example, the request may be too complex or too voluminous. In these cases, agencies may ask the individual seeking access to make a request under the Act.
It is recommended agencies develop an information and document disclosure policy to assist agency staff to efficiently and securely identify categories or types of information or documents that are authorised by the agency to be released outside the Act.