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A look at Victoria’s Freedom of Information Act and its limitations

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The Freedom of Information Act 1982 (Vic) (FOI Act) is a fundamental element of the administrative law landscape in Victoria, aimed at ensuring government transparency and accountability.

It allows individuals to access documents held by Victorian government agencies. Recent reviews and consultations have led to updated guidelines from the Office of the Victorian Information Commissioner (OVIC) to help agencies better manage their responsibilities under the law.

The FOI Act was established in response to growing demands for more transparent and accountable government operations in the late 20th century. It was inspired by similar legislation enacted in other jurisdictions, including the Freedom of Information Act 1982 (Cth) (Commonwealth FOI Act. Since its inception, the FOI Act has played a crucial role in fostering open government and enabling citizens to participate more fully in democratic processes.

Key provisions and mechanisms of the FOI Act

A central provision of the FOI Act is the right it grants individuals to access government-held documents, though there are some exemptions. People can request information by submitting written applications to relevant government agencies. These requests trigger an obligation for agencies to consider requests for information within specified timeframes.

However, there are certain situations where agencies can refuse access to information, such as matters of national security, personal privacy, and commercial confidentiality. If someone is unhappy with an agency’s decision about their FOI request, they can ask for an internal review or take their case to the Victorian Civil and Administrative Tribunal (VCAT). Agencies can charge fees for processing these requests, but some applicants might qualify for fee waivers or reductions.

Challenges and limitations in Victoria

Despite its significance, the FOI Act faces several challenges and limitations in Victoria. According to a recent report by OVIC, ‘The State of Freedom of Information in Victoria’ (OVIC Report), one major issue is delays and backlogs. Government agencies often face challenges in processing FOI requests within the prescribed timeframe, leading to delays in fulfilling the request. The OVIC Report noted the impact of the COVID pandemic, which affected staffing levels, increased the volume of requests and impacted searching capabilities.

Additionally, agencies are increasingly using their powers to refuse processing a request, for example, denying access on the grounds that the work involved would significantly and unreasonably divert the agency’s resources. Limited resources and staffing within government agencies may further hinder their capacity to effectively implement the FOI Act and respond to requests in a timely manner leading to an increase in complaints and appeals. The number of FOI-related complaints received by OVIC and appeals to VCAT has increased substantially, with VCAT appeals increasing by 54 per cent in two years.

Similar challenges with Commonwealth FOI regime

Victoria is not alone in facing issues regarding the implementation of the FOI regime in recent times. On 7 December 2023, the Commonwealth Senate’s Legal and Constitutional Affairs References Committee released its report, ‘The Operation of Commonwealth Freedom of Information Laws’ (Senate Report).

The Senate Report paints a picture of an under-resourced Commonwealth FOI regime, with delays in Information Commissioner reviews and a need to streamline processes, for example, those relating to vexatious litigants. The Senate Report has many similarities to the OVIC’s report on the state of FOI in Victoria, notably regarding resourcing, delays and significant increases in review requests.

What next?

Following the OVIC Report, the Victorian Government has developed new guidelines to help agencies apply the FOI Act more effectively. Consultation on the draft guidelines closed in March 2024 and the final guidelines have been published by OVIC. At the Commonwealth level, the FOI guidelines have proved to be invaluable to Commonwealth agencies in interpreting the Commonwealth FOI Act and helping agencies comply with their obligations.

In summary, following the development of the Victorian guidelines and a structured review into the state of FOI, agencies should focus on several key areas to improve handling of FOI requests. Streamlining processes and enhancing administrative efficiency can help reduce delays. Agencies should also consider resource options to manage unexpected increases in the number or complexity of requests. Adopting the new FOI guidelines will assist with promoting best practice and consistency. The guidelines are intended to assist agencies to fulfil the object and intent of the FOI Act promoting compliance. Agencies should appropriately interpret exceptions and exemptions based on legislative provisions, case law, and guidance. Ensuring that FOI officers receive proper training, guidance, and support is essential for promoting compliance and improving the overall functioning of the FOI system.

By following these practices, Victorian government agencies can better manage FOI requests, ultimately fostering greater transparency and accountability in government operations. This means handling requests more efficiently, reducing delays, and building public trust through clear communication and proper records management. When government actions and decisions are more transparent, it helps hold officials accountable, ensuring they act in the public’s best interest. Improved FOI processes contribute to a more open, accountable, and trustworthy government, benefiting everyone in society.

By Elizabeth Carroll, Partner, and Lachlan Speak, Associate, Holding Redlich

Disclaimer

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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