Section 6W - Compliance with professional standards

The Professional Standards apply to all Victorian agencies subject to the Act. This includes local governments, departments, statutory authorities, public hospitals, councils, TAFEs, and universities.

An agency’s Principal Officer and any agency officer or employee concerned in the operation of the Act must comply with the Professional Standards when that person performs functions under the Act (for example, when searching for documents relevant to a request).³

Principal Officers must also ensure all agency officers and employees are informed about the requirements of the Professional Standards. In addition to complying with the Professional Standards, Principal Officers must make sure officers and employees who are required to comply with the Professional Standards do so.

Ministers do not have to comply with the Professional Standards. Similarly, a Principal Officer, employee, or officer of an agency is not required to comply with the Professional Standards when processing an FOI request made to a Minister.⁴ However, the Premier may adopt Professional Standards to apply to Ministers under section 6Y.

The Professional Standards apply to a broad range of agency officers and employees (anyone involved in the operation of the Act). This includes officers and employees both within and outside of an agency’s FOI unit, such as an:

• FOI officer;
• FOI decision maker;
• officer who searches for documents relevant to a request;
• officer who marks up documents relevant to a request; and/or
• officer who publishes information in accordance with Part II.

‘Officer’ includes independent contractors and consultants employed by the agency.

‘Any officer or employee of the agency concerned in the operation of this Act’ recognises that FOI, and access to information more generally, does not rest solely with an agency’s FOI unit. It is an agency’s obligation as a whole to facilitate access to information in accordance with the Act, and to be aware of the Professional Standards and their requirements.

Agency-wide awareness and understanding of FOI and access to information helps to ensure an agency can process a request in a timely manner and provide access to as much information as possible.

Similarly, some Professional Standards relate to agency officers or employees outside of the agency’s FOI unit. Therefore, those individuals must be aware of, and comply with, the Professional Standards.

The Information Commissioner and the Public Access Deputy Commissioner are responsible for monitoring compliance with the Professional Standards.⁶ The Information Commissioner may delegate functions to Office of the Victorian Information Commissioner (OVIC) staff under section 6R. Therefore, this part collectively refers to the Information Commissioner, the Public Access Deputy Commissioner and OVIC staff as ‘OVIC’, unless otherwise stated.

Generally, in monitoring compliance with the Professional Standards, OVIC will:

• identify and record a Professional Standard ‘engagement’ (a potential or actual non-compliance with a Professional Standard recorded in OVIC’s case management system);
• gather information about the engagement and decide if there has been a breach; and
• consider the nature of the breach and the action required.

Professional Standards are ‘engaged’ when potential or actual instances of non-compliance with the Professional Standards are identified and recorded in OVIC’s case management system (referred to as ‘engagements’).

OVIC initially assesses each FOI review and FOI complaint it accepts for Professional Standards engagements. OVIC also monitors for Professional Standards engagements during the handling of a review or complaint matter.

OVIC identifies most Professional Standard engagements, but they can also be identified by:

• an applicant to a review application before OVIC;
• a complainant by way of a complaint to OVIC; or
• an agency, by way of self-reporting.

After a Professional Standards engagement has been identified, OVIC will record and consider if it amounts to a breach of the Professional Standards.

After OVIC records a Professional Standard engagement, OVIC will consider the information it has to determine if there has been a breach of the Professional Standards.

In some instances, non-compliance with the Professional Standards will be apparent based on the information OVIC already has. In that case, OVIC will consider the nature of the breach and how to respond.

If more information is needed to decide if there has been a breach of a Professional Standard, OVIC will make preliminary inquiries with the agency and the applicant or complainant. For example, OVIC may ask an agency to provide copies of emails or letters the agency sent to the applicant where a Professional Standard requires an agency to notify an applicant of certain information within a specified timeframe.

Where OVIC has gathered sufficient information about the Professional Standard engagement and determines the agency has complied with the Professional Standards, OVIC will record the outcome of the engagement and no further action is taken.

Where OVIC has gathered sufficient information about the Professional Standard engagement and finds an agency has not complied with the Professional Standards, OVIC will consider the nature and extent of the breach and the action required.

If OVIC finds an agency has not complied with the Professional Standards, it will consider the nature of the breach (how significant it is) and what kind of action to take in response to it.

OVIC uses a range of compliance and enforcement tools to address non-compliance of the Professional Standards such as:

• educational or informal; and/or
• formal.

OVIC’s approach will depend on the nature and seriousness of the conduct, the impact of the non-compliance, and the circumstances of each case. Generally, the more serious, repeated, or systemic the breach, the more interventionist the response will be.

OVIC classifies breaches of the Professional Standards into two categories:

• minor or technical breaches; and
• substantial, persistent, or systemic breaches.

A minor or technical breach is where an agency’s action or inaction results in a minimal risk of detriment to members of the public or OVIC (such as a minor delay in providing information where an agency must provide it in a specified timeframe).

A substantial, persistent, or systemic breach relates to an agency’s action or inaction where there is moderate to high risk of detriment to members of the public or OVIC (such as significant and ongoing delays, repeated and persistent breaches, or the identification of wider systemic concerns).

OVIC mostly uses educational and informal tools to resolve breaches. This reflects the fact that most agencies are willing and able to comply with their statutory obligations but may need guidance in specific instances.

OVIC will generally take educational and informal action to resolve minor or technical instances of non-compliance.

Educational or informal action may involve OVIC:

• talking to FOI practitioners to educate and support them in meeting their Professional Standards obligations. For example, OVIC may meet with an FOI practitioner to discuss the breach, how it could have been avoided, and how to avoid it in the future;
• requesting that an agency participate in an educational activity, such as completing the Professional Standards Self-Assessment Tool or referring an agency to OVIC’s online resources;
• requesting evidence from the agency to show how it intends to comply with the Professional Standards in the future (for example a policy, procedure, or template letter);
• writing to an FOI practitioner about the breach and asking them for a response or written submission to explain how the breach happened;
• requesting a meeting between OVIC and an agency’s FOI unit to talk about the Professional Standards and how to meet them;
• addressing breaches of the Professional Standards in the covering letter of a Notice of Decision to an agency (for example, to remind the agency of their obligations under the Professional Standards); and/or
• monitoring the agency’s compliance with the Professional Standards for a period of time.

OVIC may take formal action in response to a significant, persistent, or systemic breach of the Professional Standards.

If OVIC takes formal action, it will escalate the breach of the Professional Standards to a senior OVIC staff member or to a Commissioner to consider what kind of action to take.

Formal action may involve OVIC contacting the agency’s Principal Officer to notify them of the breach and providing them with an opportunity to respond to the alleged breach.

Where appropriate, OVIC may monitor an agency’s performance and compliance with the Professional Standards on an ongoing basis.

Ongoing monitoring refers to OVIC observing an agency’s performance and compliance with the Professional Standards for a period of time. OVIC does this via stakeholder engagement activities, analysing Annual Report data, and examining instances of non-compliance with the Professional Standards recorded in OVIC’s case management system.

Monitoring agency performance allows OVIC to identify and address systemic issues in an agency so that OVIC can measure the extent of an agency’s non-compliance and support them to improve their practices.

When OVIC is dealing with a complaint, OVIC may make recommendations under section 61L, which gives the Information Commissioner the power to make recommendations to an agency, Principal Officer, or Minister, regarding the complaint.

Recommendations may include suggestions for improvements to the policies, procedures, and systems of the agency regarding compliance with the Act. The Information Commissioner must give the agency, Principal Officer, or Minister an opportunity to comment on, and respond to, the draft recommendation.

The Information Commissioner may also decide to refer the matter to another body to investigate (the body to whom OVIC may refer the complaint will depend on the subject matter of the complaint).

Where appropriate, OVIC may consider whether to conduct an own motion investigation into a breach of the Professional Standards.

OVIC’s Regulatory Action Policy sets out when and how OVIC conducts an investigation.

Where OVIC formally records a breach of the Professional Standards (after giving an agency the opportunity to respond to the proposed finding of a breach), OVIC may report the breach in its Annual Report as an educative tool for other agencies.