How to assist the freedom of information complaints process

OVERVIEW

The Office of the Victorian Information Commissioner (OVIC) can investigate complaints about certain actions taken or failed to be taken by an agency or Minister under the Freedom of Information Act 1982 (Vic) (the Act).

This practice note provides an overview of how complaints are managed by OVIC and what agencies can do to engage in the complaints process. All legislative references are to the Act unless otherwise stated.

COMPLAINTS

Under section 61A(1)(a), a complaint can be made to OVIC about an action taken or failed to be taken by an agency in the performance of their functions and obligations under the Act.

Section 61A(1)(a) is broad and allows complaints to be made about a variety of matters. These can include:

• a delay in processing a request with the statutory timeframe;
• a decision that a document does not exist or cannot be located;
• a failure to provide assistance to an applicant to make a valid request;
• a decision to transfer a request to another agency; or
• a failure to comply with the Professional Standards published under Part IB of the Act.

Section 61A outlines a number of other circumstances where a complaint can be made, including complaints about Ministers.

INFORMAL RESOLUTION

OVIC will attempt to resolve a complaint informally in accordance with section 61GB. Under Professional Standard 10.1, an agency must assist the Information Commissioner or the Public Access Deputy Commissioner in their attempt to informally resolve a complaint. Professional Standard 10.3 also requires agencies to respond to requests for information by OVIC within requests or agreed timeframes

Agencies should approach the resolution process with an open mind, and work with OVIC to resolve the complaint with as little formality and technicality as possible. Some common complaints that OVIC receives, and the approach taken to informally resolving the complaint are listed below.

Delay

Where an agency has not processed a request within the statutory timeframes under section 21, OVIC will ask for information about the current status of the request, an estimate of when the decision will be made, and reasons for the delay.

In responding to OVIC’s request for information, agencies should provide a realistic estimate of when a decision will be made, and be transparent about the reasons for the delay by providing as much information as possible about the cause of the delay.

OVIC will use this information to explain to the complainant why the delay has occurred, when they can expect a decision, and what the agency is doing to progress the request.

Where there has been a delay, providing a detailed explanation for the delay, and if appropriate, contacting the complainant to acknowledge and apologise for the delay can result in the timely resolution of a delay complaint.

Documents do not exist or cannot be located

Where an agency makes a decision that a document does not exist or cannot be located, OVIC will ask for a detailed description of the searches conducted. Under Professional Standard 6.1, where a search for documents is conducted, an agency must ensure a record is kept of searches undertaken, including locations searched and the methods or types of searches undertaken.

OVIC will use this information to explain to the complainant why (where possible) the document does not exist or cannot be located. The information can also assist OVIC to determine why the complainant is of the view a document should exist, or should have been located.

OVIC will ask complainants to provide further information about why they believe further document exists. This information may be provided to the agency and the agency may be asked for further searches to be undertaken.

Request does not meet the requirements of section 17

Where a complainant made a request that did not meet the requirements under section 17 for making a valid request, OVIC will ask for information about the steps taken by the agency to assist the complainant to make a valid request.

This might include detailing the steps taken by the agency in accordance with Professional Standard 2.4, which requires an agency to notify an applicant that a request is not valid and provide reasonable assistance or advice to the applicant about how to make a valid request.

In trying to resolve a complaint, OVIC will advise a complainant why their request was not accepted as valid, and provide guidance on what the complainant could do to make a valid request.

Sometimes an agency acknowledging where a request has not been handled well and advising OVIC of (or communicating to the complainant) any improvements that will be made to processes or procedures to minimise the recurrence of similar future issues can result in the resolution of a complaint.

AGENCY RESPONSE TO ENQUIRIES

In order to resolve complaints, OVIC needs to be able to discuss agency responses with, and provide information to, a complainant. If any of the information provided by an agency should not be provided to a complainant, agencies should note that it is confidential. Where information is provided in confidence, it will not be discussed or shared with a complainant.

FORMAL MECHANISMS UNDER THE ACT

Where a complaint cannot be resolved informally, OVIC may decide it is necessary to use formal mechanisms under the Act. These might include:

• under section 61H, entering into conciliation between the agency and complainant, with the aim of reaching an agreement to resolve the complaint. If the complaint is successfully conciliated, the outcome will be recorded in a written agreement and a copy provided to the agency and the complainant;
• under section 61U, requiring an agency to produce documents or attend to answer questions; or
• under section 61L, making recommendations to the agency in relation to the complaint, including recommendations for improvements to policies, procedures and systems for compliance with the Act.

DISMISSAL OF COMPLAINTS

There are instances where OVIC considers that conciliation or the use of formal mechanisms are not appropriate. This is likely in cases where OVIC accepts an agency has not made an error in handling a request, or where the agency has taken reasonable steps to correct any errors it has made.

If this conclusion is reached, but the complainant remains dissatisfied, OVIC will try to assist the complainant by providing further information about how the complaint may be resolved outside the complaints process. For example, by suggesting terms for a new request or referring them to another agency that can deal with the complaint.

If the complainant does not consent to close the complaint the Information Commissioner or Public Access Deputy Commissioner (or their delegate) may decide to dismiss the complaint.

REFLECTING ON COMPLAINTS

Complaints can provide valuable insights into an agency’s practices and processes, and may require further action by management, including improvements to existing policies, procedures or service delivery and the need for specific and broader staff training in freedom of information.

Effective complaint handling and engagement by agency in the complaints process improves an agency’s reputation for being accountable, transparent and responsive to the public.