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Other Information

March training sessions

FOI Solutions is offering the following upcoming training sessions:

  • Recent developments at VCAT in Freedom of Information
  • Recent developments at VCAT in Privacy
  • Validity of FOI requests in Victoria: Practical hints and tips from recent cases

For more information or to book online, visit the training sessions page on our website.

Question time

Q: Is a government organisation responsible for the conduct of its employees or agents under the Privacy and Data Protection Act 2014?

 

A: Section 118 of the Privacy and Data Protection Act 2014 addresses the relationship between employees and agents who carry out acts or practices on behalf of the organisation.  Under s 118, an act done or practice engaged in by an employee or agent is taken to have been done or engaged in by the organisation unless the organisation establishes that it took reasonable precautions and exercised due diligence to avoid the act being done or the practice being engaged in by its employee or agent. 

 

In other words, if your organisation establishes that it took reasonable precautions and exercised due diligence to avoid the privacy breach from occurring, it would not be liable for a breach of privacy. It is important to note that the required standard is that the steps are “reasonable”.  This requires consideration of the circumstances and factors to determine whether the steps taken were reasonable to prevent the act or practice from occurring.  (See example case TSJ v Department of Health and Human Services [2016] VCAT 687). 

 

Q: Do I have to process the drafts and duplicates under the FOI Act or can I leave them out to speed up the processing time?

 

A: I have received an FOI request and completed a thorough and diligent search for documents corresponding to the request.  Many of the documents found are duplicates of other documents and draft documents.  Do I have to process the drafts and duplicates under the FOI Act or can I leave them out to speed up the processing time?

 

The short answer is yes, you have to process drafts and duplicates.  The definition of a ‘document’ in s 5 of the FOI Act includes any copy, reproduction or duplicate, or any part of a copy, reproduction or duplicate of a document.  This means that drafts and duplicates are “documents” within the meaning of the FOI Act and must be processed under the FOI Act, unless the applicant has expressly indicated that they do not seek access to draft documents and/or duplicate documents.

 

We understand that processing duplicates and drafts adds to the processing time. As such, we recommend, where practicable and early on in the process, that you expressly ask the applicant to tell you in writing whether they seek access to duplicate documents and draft documents.  This question could form part of your agency’s pro forma FOI application form or be asked when acknowledging the validity of the request.  If the applicant says yes, you will need to process the drafts and duplicates and if no exemptions or exceptions apply, release the documents to the FOI applicant. If the applicant says no, these documents need not be processed.