Introduction

The Office of the Victorian Information Commissioner (OVIC) is the primary regulator for information privacy, information security and public access to information in Victoria.

OVIC administers both the Freedom of Information Act 1982 (Vic) (FOI Act) and the Privacy and Data Protection Act 2014 (Vic).

One of OVIC’s key functions is to promote understanding and acceptance by agencies and the public of the FOI Act and its object, which is to extend as far as possible the right of access to information in the possession of the Victorian Government and other bodies constituted under the law of Victoria.²

Facilitating public access to information is a statutory obligation and core service delivery function of agencies and their staff. OVIC encourage agencies to release information proactively and informally as much as possible, with FOI being used as a last resort.

Victorian public sector (VPS) employees play a critical role in facilitating and upholding a person’s legal right to obtain access to government information.

This resource is designed to assist new and existing VPS employees to fulfil the object of the FOI Act by providing an introduction to public access to information in Victoria, including freedom of information (FOI) and more broadly, proactive and informal release of information outside the FOI Act.

It provides guidance on how VPS employees can facilitate and promote a strong culture of public access to information within and by their agency.

What is public access to information?

Public access to information refers to the right of members of the public to access government-held information, whether through FOI, proactive release, or informal release.

Why is public access to information important?

Governments collect, create, and use a large amount of information to deliver services and make decisions affecting the public. Government agencies have a responsibility to ensure the public’s legal right to access government-held information is upheld.

In a democratic society, the government acts on behalf of the people. Public access to government-held information is fundamental to open and accountable government.

The right to access government information:

• promotes public trust in government and the public sector
• enables the public to hold government to account through transparency and public scrutiny of their decisions and actions;
• enables the public to participate meaningfully in society and government policy making; and
• promotes better government decision making.

This information right is as crucial as, and contributes to, other important human rights such as, the right to freedom of expression and the right to vote.

Freedom of information

Introduction to the FOI Act

The FOI Act sets out the public’s right to request access to documents held by Victorian public sector agencies, subject to exceptions and exemptions under the FOI Act.⁹ It is one of several integrity mechanisms that allows the public to scrutinise, participate in and have confidence in the work of government, which promotes trust in government and the public sector.

Purpose

The purpose of the FOI Act is to extend as far as possible the right of the community to access information in the possession of the Victorian Government. This right extends to all documents held by an agency and official documents of a Minister, except for specific kinds of documents that are exempt from release.

Who is subject to the FOI Act?

The FOI Act applies to:

• government departments;
• Ministers;
• Victoria Police;
• local councils;
• public hospitals;
• public schools, universities, and TAFEs; and
• statutory authorities.

What is a ‘document’?

The FOI Act defines ‘documents’ broadly and includes files, emails, text messages, case notes, draft material, handwritten notes, discs, photographs, maps, and more.¹⁰ Essentially, anything in the possession of an agency that is capable of conveying information or meaning is considered a document.

What documents are exempt?

Agencies are required to provide access to a document requested under the FOI Act unless the document is not subject to or is exempt from release under the FOI Act.

The FOI Act includes a number of exemptions¹¹ which apply in specific instances (for example, where disclosure of an individual’s personal affairs information would be unreasonable).¹² For more information, see OVIC’s FOI Guidelines on each exemption.

If an exemption applies, it usually means the agency is not required to provide access to the specific information to which the exemption applies. However, the FOI Act also enables agencies to provide access to exempt information where it is reasonable and appropriate to do so (for example, through proactive and informal release or where there is little detriment to release the information).

The FOI process

Receiving a valid FOI request

The FOI Act sets out certain requirements for a valid request to be made to an agency:

• it must be made in writing;
• it must be clear and specific enough to enable the requested documents to be identified and located; and
• it must be accompanied by an application fee unless the fee is waived or reduced.¹³

If the FOI request is not valid, the agency has an obligation to provide the applicant with at least 21 days to make a valid request and must provide advice or guidance to assist the applicant in making a valid request.¹⁴

How is an FOI request processed?

After receiving a valid FOI request, agencies must undertake a ‘thorough and diligent’ search for the requested documents.

The search needs to capture all relevant documents in the possession of the agency and must be undertaken in locations likely to hold the relevant documents. This can include emails, hardcopy files, text messages, notebooks and other records that may not be saved in the agency’s electronic document management system.

The search terms must not limit the discovery of documents likely to fall within the terms of the FOI request. For more information on conducting a document search, see the FOI Guidelines – section 27.

Once the search for requested documents has been completed, agencies must make a decision about whether to release the documents, in part or in full, or to deny access to some or all of the requested documents. This will involve an agency’s authorised FOI officer (for example, an agency officer authorised to make a decision on an FOI request under the FOI Act) considering whether any FOI Act exemptions apply to the documents.

Assessing and making a decision on each document will also require the agency to consult with any third party if the documents contain:

• personal affairs information of individuals other than the applicant;
• commercially sensitive business information; and
• information communicated in confidence.

Once a decision is made by the agency’s authorised FOI officer, a decision letter is drafted that outlines their decision and reasons for decision. Where a document cannot be located, or does not exist, an agency must explain the reasons why and what attempts were made to locate the document. More information about what should be included in an FOI decision letter is outlined in the FOI Guidelines – section 27.

As processing FOI requests involves making a government decision, VPS employees should be conscious of their obligations under the Public Administration Act 2014 (Vic), including the Public Sector Values under section 7(1) of that Act, including:

• responsiveness;
• integrity;
• accountability;
• respect;
• leadership; and
• human rights.

Further information on the Public Sector Values and what they entail is available on the Victorian Public Sector Commission website.

What are the timeframes for the FOI process?

Timeliness is a key aspect of the FOI process. Once a valid request is received, an agency has 30 days to process the request and provide a decision to the applicant about whether the documents will be released. The 30-day timeframe includes all weekends and public holidays and can be extended by an additional
15 or 30 days in limited circumstances (for example, to fulfil the requirement to consult with a relevant third party about the possible release of their information).

OVIC’s website provides guidance on FOI decision making timeframes and extending time to process an FOI request in the FOI Guidelines – Section 21

The website also has a due date calculator tool to assist in determining the due date for an FOI request.

What is the role of the Commissioners and OVIC in the FOI process?

Under the FOI Act, the key functions of the Information Commissioner and the Public Access Deputy Commissioner include:

• promoting understanding and acceptance by agencies and the public of the FOI Act and its object;
• conducting reviews of decisions made by agencies and Ministers under the FOI Act;
• handling complaints made under the FOI Act;
• providing advice, education, and guidance to agencies and the public in relation to OVIC’s functions;
• developing and monitoring compliance with the Professional Standards; and
• providing advice, education, and guidance to agencies and the public in relation to compliance with the Professional Standards.

OVIC assists the Commissioners in carrying out their functions under the FOI Act.

Proactive release of information

What is proactive release?

Proactive release involves an agency making information or documents it holds or collects publicly available, on its own accord without someone making an public access to information request.

Proactive release is consistent with an agency’s obligations under the FOI Act to make the maximum amount of government information available to the public promptly and inexpensively. The FOI Act also promotes the proactive release of government information by enabling the release of information outside the FOI process.¹⁶

Every agency should aim to provide access to government information outside the FOI Act through proactive and informal release mechanisms, wherever possible.

Informal release is different to proactive release. It involves an agency receiving an public access to information request and releasing the requested information or document, either in full or in part, outside the FOI Act. For more information on informal release, read our Practice Note on Informal Release.

What are some examples of proactive release?

An agency can choose to proactively release information in several ways. Some examples include:

• information an agency publishes on its website, including information about what it does, publication of other non-personal information, reports, submissions and documents;
• data published on gov.au;
• tender, contractual, and financial information published on Buying for Victoria;
• information published online in public registers, platforms, or portals; or
• information published in accordance with Part II of the FOI Act.

What are the benefits of proactive release?

There are important benefits to both agencies and the public when government-held information is released proactively.

For example, proactive release:

• reduces the need for an individual to make a formal FOI request which reduces the resources required to administer the FOI Act;
• builds public trust and confidence in decision-making by government and public institutions and strengthens principles of liberal democracy;
• enhances public sector accountability and integrity;
• increases the public’s access to government information and allows them to participate in policy development and government decision making;
• improves government service delivery to the public by providing access to information faster and more easily than under FOI; and
• provides the opportunity for an agency and individual to agree on when and in what form information is to be released.

When should agencies proactively release information or documents?

An agency must publish certain information under Part II of the FOI Act. Further details on the information agencies must publish in accordance with Part II of the FOI Act are contained in our Practice Note on Proactive Release. Often referred to as an agency’s ‘Part II statement’ informs members of the public about the role, structure, functions and nature of documents created and held by an agency, which is information that can assist in making a request for specific information or a document.

An agency may release information or documents proactively at any time, provided it is lawful and possible to do so. For example, an agency should regularly identify information that may be suitable for proactive release, decide whether to provide access to it (bearing in mind any prohibitions which may prevent the agency from proactively releasing it, such as a secrecy provision that prohibits disclosure), and publish the information accordingly.

What are some key considerations for proactive release?

When deciding whether to proactively release a document or information, agencies may consider:

• repeated requests for the same type of information or document, which can indicate it is of general interest to the public and should be made publicly available;
• the Information Privacy Principles under the Privacy and Data Protection Act 2014 (Vic) and whether the agency has authority under that Act or other legislation to proactively release or publish certain personal information;
• any statutory secrecy provisions or other restrictions (for example, a court order) that may prevent proactive release of the information or document;
• information or documents released proactively are released without any conditions or restrictions on their future use or further dissemination; and
• protections against defamation or breach of confidence, under section 62 of the FOI Act, do not apply to information or documents proactively released outside of the FOI Act. However, this should not be seen as a barrier to proactive release as these protections do not have general application and will only apply when relevant.

Informal release of information

What is informal release?

Informal release involves an agency receiving an FOI request and releasing the requested information or document, either in full or in part, outside the FOI Act. This is also known as ‘administrative release’.

For example, an agency may establish an alternative arrangement for providing access to commonly requested information or documents that does not involve making an FOI request.

Both the FOI Act¹⁹ and Professional Standard 1 encourage agencies to release information outside the FOI Act where it is possible and lawful to do so. Therefore, every agency should aim to provide access to government information outside the FOI Act through proactive and informal release wherever possible and the applicant agrees.

Proactive release is different to informal release in that it involves an agency making information or documents it holds or collects publicly available, on its own accord, without someone making a request for that information. For more information on proactive release, read our Practice Note on Proactive Release of Information.

What are some examples of informal release?

An agency may provide access to information informally by:

• Providing individuals with information over the telephone or via email in response to a formal FOI request.

For example, a member of the public makes an FOI request and the agency provides access to the information informally by email.

• providing individuals with information over the telephone or via email in response to a request for information without the need for or without making an FOI request.

For example, a member of the public submits an email enquiry to an agency asking for information on when it will close public consultation on a proposed infrastructure project, and what the next steps are, and the agency provides the requested information by return email.

• Inviting individuals to inspect information.

For example, a member of the public asks an agency if they can inspect information on a register that the agency maintains. The agency provides information about how to inspect information on the register, including whether the person needs to fill out an application form and whether a fee applies. The agency facilitates the inspection.

• Providing access to information under an informal release scheme. Some agencies have developed and administer informal release schemes, which may be established under legislation or policy. These schemes outline a process for requesting access to information outside of the FOI Act. In some cases, a charge may apply to access information or a document.

For example, an agency may identify commonly requested documents under the FOI Act and establish a process for providing accessing that document under an informal release scheme. The agency provides information about how to access information under the scheme on its website and facilitates access to information via the scheme.

What are the benefits of informal release?

There are important benefits for the informal release of government held information. For example, informal release:

• reduces the need for an individual to make a formal FOI request and the staff and financial resources required to administer the FOI Act;
• builds public trust and confidence in decision making by government and public institutions and strengthens principles of liberal democracy;
• enhances public sector accountability and integrity;
• increases public access to government information and allows them to participate in policy development and government decision making;

• reduces the financial cost to individuals seeking access to information (although OVIC recognises there may be some instances where an informal release scheme may have a fee associated with access);

• improves government service delivery to the public by providing access to information faster and more easily than under FOI; and
• provides the opportunity for an agency and individual to agree on when and in what form information is to be released.

When should an agency informally release information or documents?

An agency may release information or documents informally at any time, provided it is lawful and possible for it to do so.

An agency may also be required to consider informal release under the Professional Standards. For example, where an individual makes an FOI request under the FOI Act, Professional Standard 1.1 requires an agency to consider whether the requested document can be properly provided to the individual outside the FOI Act.²⁰

When deciding whether information or a document can be informally released, an agency may consider:

• 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 information to them;
• 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.

An agency should consider the informal release of information or a document it holds that relate to its usual governmental functions and operations. Where a document relates to a commercial matter (a tender process or procurement for goods and services) it may still be appropriate for informal release with certain information deleted from the document.

An agency may also need to consult with business areas within the agency to understand the nature and context of a requested document.

If a document can be provided outside the FOI Act, under Professional Standard 1.2, the agency must either:

• facilitate access to the information or document; or

• advise the applicant 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 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.

What are some key considerations for informal release?

When considering whether to informally release a document or specific information, agencies may take into account several factors, including:

• the form of release. Informal release allows an agency to be flexible in the way it releases information or a document (for example, by telephone, email, letter or in person) and whether to release it in full or with certain information redacted;
• the timeframe for release. While agencies have no time limit for providing informal access to information or documents, they should endeavour to do so promptly and actively engage with the individual seeking access (for example, by providing an estimated timeframe for release or coming to an agreement about the time in which the agency will provide access);
• information or documents released informally are released without any conditions or restrictions on their future use or further dissemination;
• agency officers releasing information or documents informally 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 rights to OVIC. If an individual indicates they would like the opportunity for independent review if refused access to information or documents either in part or in full, the agency should inform the individual that they should make a formal FOI request under the FOI Act and seek an FOI decision to enact these review rights;
• the Information Privacy Principles under the PDP Act and whether the agency has authority under the PDP Act or other legislation to informally release certain personal information;
• protections against defamation or breach of confidence, under section 62 of the FOI Act, do not apply to information or documents informally released outside of the FOI Act. However, this should not be seen as a barrier to informal release as these protections do not have general application and will only apply when relevant; and
• in some cases, it may not be possible or appropriate for an agency to deal with an information request informally and it may ask the individual seeking access to make a formal request under the FOI Act.

Obligations in relation to public access to information

Who is responsible for public access to information?

Each VPS employee is responsible for facilitating access to Victorian government-held information.

What are the responsibilities of an FOI practitioner?

An FOI practitioner (also known as an FOI officer) are agency employees who are authorised to make decisions on behalf of their agency under the FOI Act.

The role of FOI practitioners in relation to providing public access to information:

• ensuring they are authorised to make decisions under the FOI Act;
• maintaining knowledge of their agency’s obligations under the FOI Act, including the Professional Standards issued under Part IB of the FOI Act;
• processing FOI requests, including conducting document searches, assessing documents, communicating with applicants and making decisions on whether to release documents under the FOI Act;
• considering whether the information sought in an FOI request can be provided outside the FOI Act (for example, through informal release) and explaining these options to an applicant;
• advising on FOI processes and procedures within the agency;
• providing advice and education to agency staff on the application of and the agency’s obligations under the FOI Act; and
• promoting a culture of access to information within the agency.

FOI practitioners may also:

• assist in developing or providing advice on the development of the agency’s policies and processes for proactive and informal release of information; and
• provide training for other agency employees on public access to information obligations and requirements.

What are the responsibilities of principal officers and executives?

Principal officers of agencies (generally departmental secretaries, agency or authority heads, chief executives officers and chairpersons) have responsibilities and specific obligations under the FOI Act and the Professional Standards. Other executives within agencies often have obligations with regards to public access to information as well.

Obligations for principal officers and executives include:

• promoting a culture of providing access to information within the agency;
• ensuring there are internal policies (for example, a proactive and informal release policy) and processes in place to enable agency employees to provide access to information;
• ensuring agency officers and employees are informed about the requirements of, and comply with the FOI Act and the Professional Standards;

• ensuring the agency has the necessary resources and procedures in place to receive and process FOI requests within required timeframes under the FOI Act;
• ensuring, or be actively working towards ensuring, all agency officers and employees who are responsible for responding to FOI requests, or assisting FOI practitioners in processing FOI requests, have the appropriate skills and training to do so; and

• ensuring information required under Part II of the FOI Act is available on its website and are reviewed annually.

For further information on principal officer obligations, see our guidance on Principal officer responsibilities and obligations under the FOI Act.

What are the responsibilities of other VPS employees?

Employees of agencies, other than FOI practitioners, Ministers, and executive employees, also have obligations in relation to facilitating public access to information in Victoria.

These obligations include:

• promoting a culture of providing public access to information within their agency;
• where an individual requests documents or information from them directly, considering whether the documents or information are publicly available (for example, on the agency’s website), can be released informally or whether an FOI request is required;
• assisting FOI practitioners to undertake a ‘thorough and diligent’ search for documents subject to an FOI request in a timely manner;
• assisting FOI practitioners to understand the context and content of documents subject to an FOI request (for example, documents that contain operational or technical information that can only be understood with expert knowledge) so they can make an accurate decision about whether to release them, whether in part or in full;
• ensuring agency documents are retained and maintained in accordance with the agency’s public record keeping practices and requirements. Good record keeping practices allow documents to be quickly located and provided to FOI practitioners, where required for an FOI request, or to the requesting individual in the case of informal release;
• contacting the agency’s FOI practitioners or key contact for proactive and informal release processes, where unsure about how to provide access to information requested from an individual; and
• referring to, and acting in accordance with, the agency’s internal policies relating to public access to information (for example, an FOI policy or a policy for proactively or informally releasing information).

For more information on the responsibilities of VPS employees, see our guidance on Overview of the FOI Act and the responsibilities of Victorian public sector officers.

Promoting a culture of access to information

How can agencies promote a culture of public access to information?

There are many ways that agencies can promote a culture of access to information within their agency and across the VPS, including:

• considering FOI as a last resort for access to information by first considering whether documents and information can be released either proactively or informally;
• adopting a policy to guide the proactive and informal release of information, which can assist agency employees to confidently provide access to information outside of the FOI Act and provide them with the authority to do so;
• keeping information statements under Part II of the FOI Act current and publicly available, which helps the public to understand what information an agency holds and in what form;
• presenting all options for accessing information on the agency’s website with sufficient detail, including when an individual would use each option, for the public to make an informed choice about which option to use;

For example, an agency may list options for accessing its information, such as an informal release scheme, another platform on which the information is available (such as data.vic.gov.au), contacting the agency, or making an FOI request.

• exploring technological capabilities to flag documents that have been published or which are suitable for proactive or informal release. This can reduce the need to assess whether to release the document or information each time it is requested, which can subsequently enable agency employees to confidently decide whether it can be released informally and reduce the time needed to provide access to it;
• creating documents with public access in mind;

For example, where a document must include sensitive information that cannot be released, consider siloing the sensitive information, or creating a summary of the document for release, so that as much information as possible can be released. Explain why some information cannot be provided, where possible.

• taking a customer service approach to public access to information;

For example, an agency may triage requests to identify the potential for informal release. An agency may need to talk to the applicant to confirm the scope of the request, understand what they are seeking, and ask for more context. If informal release is possible, the agency should explain the applicant’s options for accessing the information outside of the FOI Act, what the process involves, and whether they will receive the information they are seeking. If the applicant will not receive all information they want outside of the FOI Act, the agency should explain that review and complaint rights are not applicable if it processes the request outside of the FOI Act.

• in relation to proactive release, make sure the information is easy to find and is accessible (for example, making sure the content meets the Web Content Accessibility Guidelines and considers people from culturally and linguistically diverse communities). This will help people find the information an agency already publishes, and may reduce the number of enquiries it receives regarding accessing that information; and

• building proactive and informal release and FOI into agency training and education (for example, new staff orientation and refresher training) so all agency employees are aware of the role they play in their agency’s public access to information processes.

How does OVIC promote a culture of public access to information?

OVIC supports agencies to develop a culture of access to information, through proactive release, informal release, and FOI processes, by:

• promoting FOI as a last resort for access to information and encouraging agencies to first consider whether information can be released proactively or informally;
• providing agencies with free tailored advice and guidance on the FOI Act and the Professional Standards through OVIC’s Agency FOI Information Service;
• developing and publishing guidance for agencies in relation to public access to information, including:
  • Practice Notes with guidance on interpreting and administering the FOI Act, exemptions and Professional Standards;
  • templates to guide agencies when communicating with individuals, third-parties, other agencies and internally, and include specific templates relating to proactive and informal release; and
  • issuing guidelines on the interpretation and application of the FOI Act.
• providing agencies with education on public access to information through training and events, including:
  • a free monthly training session on Administering the Freedom of Information Act 1982 (Vic) that provides VPS employees with a general understanding of the FOI Act and guides them on how to process FOI requests;
  • online learning modules relating to various aspects of FOI including;
    • hosting regular webinars for FOI practitioners on topics relating to public access to information, including FOI, proactive and informal release of information;
    • holding annual webinars, panel discussions and lightning talks to celebrate International Access to Information Day;
    • delivering speeches and presentations, which are available on OVIC’s website and Vimeo channel;
  • engaging directly with agency leadership, FOI practitioners and other agency staff to promote and support public access to information; and
  • conducting research to understand the challenges experienced by agencies in providing access to information and how OVIC can best support agencies to address those challenges. For example, see OVIC’s research report on Enhancing Victoria’s FOI Culture to be Open by Design.