How to assist the freedom of information review process
OVERVIEW
Reviews by the Office of the Victorian Information Commissioner (OVIC) are designed to be a practical, timely and cost efficient method of external review of decisions made by agencies under the Freedom of Information Act 1982 (Vic) (the Act).
This practice note provides an overview of the freedom of information review process and what agencies can do to engage in that process. All legislative references are to the Act unless otherwise stated.
The review process is intended to be timely, efficient and fair. As required by section 49H, the Information Commissioner or the Public Access Deputy Commissioner (the Commissioner) will endeavour to finalise a review with as little formality and technicality as possible.
Section 49I requires agencies to assist the Commissioner in undertaking the review.
ASSISTING THE COMMISSIONER
There are a number of things agencies can do to assist the Commissioner in undertaking a review. In particular:
- Respond to preliminary inquiries promptly – this will help OVIC to determine if the matter can be resolved informally or assist in narrowing the matters in dispute.
- Participate in informal resolution processes, and negotiate in good faith in order to attempt to resolve the review informally, before moving to the more formal review process – under Professional Standard 10.1 agencies must assist the Commissioner in their attempt to informally resolve a review.
- Provide clear and direct responses to requests for clarification or further information, and provide responses as soon as possible – under Professional Standard 10.3 agencies must respond to requests for information within requested or agreed timeframes.
- Under Professional Standard 10.2 agencies must give consideration to a preliminary view issued by, or on behalf of, the Commissioner. Where the Commissioner provides a preliminary view, carefully consider the reasons provided and any previous Commissioner decisions quoted. Consider whether to release additional information to the applicant or whether to make a fresh decision. Consult with OVIC if you have any questions about the Commissioner’s view, and if you disagree, provide detailed additional information to OVIC to support your decision.
- Avoid taking an overly technical or adversarial approach to the review process. OVIC takes an informal approach to dealing with review matters while ensuring we afford all parties procedural fairness.
- Provide copies of the documents that are subject to review as soon as practicable, and in the preferred format as described below – under Professional Standard 10.3 agencies must respond to requests for documents within requested or agreed timeframes.
- To assist us in conducting a timely review, provide any written submission by the date requested.
- Ensure any written submissions provided are clear, succinct, address relevant issues, and are sent by the date requested.
- During a review, avoid introducing new issues or claiming new exemptions that were not considered or claimed in the original decision, unless circumstances have changed or there is new information that was not available earlier. Any new issues or claims should be supported by detailed reasons.
PROVIDING DOCUMENTS
Please note the following when providing copies of documents subject to review:
- electronic copies of the documents must be provided, unless there are specific reasons not to;
- the documents must clearly indicate the exempt matter1 and which exemptions are being claimed in each instance. This is typically done by highlighting or drawing boxes around the exempt matter, in such a way that it is still visible, but clearly distinguishable – Professional Standard 10.4 requires agencies to markup documents clearly and legibly to indicate exempt matter and the applicable exemption or exemptions; and
- follow the instructions on the Document Transfer Form that is provided with the review acceptance letter.
Agencies can provide OVIC with all documents subject to a review via email or our secure File Share Platform. Contact us on 1300 006 842 or enquiries@ovic.vic.gov.au if your agency would like further information on using our File Share Platform.
WRITTEN SUBMISSIONS
Agencies and applicants have the right to make a written submission during a review. A written submission from an agency can include further information on why and how the exemptions apply, and why the documents should not be released to the applicant.
The submission should explain the decision in detail, not merely restate the information in a decision letter to the applicant. If any of the information in a written submission is sensitive or confidential, please clearly indicate this in a written submission.
A submission should contain the following:
- a detailed description of the exempt documents and how each limb of each exemption applies;
- an indication of whether the exemptions relate to part or the whole of each document;
- all material facts relied on to support the view the documents are exempt;
- the outcome of any third party consultation undertaken;
- an explanation of why any required third party consultation was not undertaken; and
- any other matter that is considered relevant.
Submissions should be sent by email to enquiries@ovic.vic.gov.au.
If your agency cannot provide a submission by the requested date, please contact the Case Manager.
TIME TO CONDUCT THE REVIEW
How long a review takes for OVIC to finalise depends on many factors, including the complexity and range of issues involved, the number of documents in dispute, any new matters raised during the review process, the time applicants and agencies take to respond to requests, and the number and complexity of other review requests on hand at OVIC.
If a review is not completed within 30 days or a longer period as agreed by the applicant, the applicant has the right to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision. If an applicant does not apply to VCAT, the review continues until it is resolved or otherwise finalised. During a review, the Commissioners can continue to exercise their powers under the FOI Act, such as requesting an agency to provide a sample of documents or search for further documents under section 49KA of the FOI Act.
In the event an applicant applies to VCAT for review during our review process, agencies are required to inform the Commissioner once notified by VCAT.
COMMISSIONER’S DECISION
If a review is not resolved informally, the Commissioner will make a formal, fresh decision. The Commissioner may agree with the original decision, or may grant the applicant access to further documents, or parts of documents.
The written Notice of Decision will set out the reasons for the Commissioner’s decision and any directions for the agency to follow when releasing or deleting exempt information.
Notices of decision are published on the OVIC and the Australasian Legal Information Institute websites.
If an agency is not satisfied with the Commissioner’s decision, it is entitled to apply to VCAT for review of that decision within 14 days of receiving the decision. Where an agency does not intend to apply to VCAT, and no third parties are involved, the agency should release the documents as soon as possible after the 14 day period.
Where the Commissioner decides to grant access to information relating to a third party, that third party is also entitled to appeal the decision to VCAT within 60 days of receiving a notice of the decision. Where a third party has not appealed to VCAT, the agency should release the documents as soon as possible after the 60 day period.
If an application for review is made to VCAT, the agency is required to notify the Information Commissioner as soon as practicable.
The Commissioner’s decision does not take effect until after all the relevant review periods noted above expire.
[1] ‘Exempt matter’ is defined in the Act to be matter the inclusion of which in a document causes the document to be an exempt document.
