From the Executive Director

Vic Professional Standards have arrived

As foreshadowed in an earlier edition of the solution, the long awaited Professional Standards prepared by the Victorian Information Commissioner have been finalised and will commence operation on 2 December 2019.

Unlike previous professional standards made in 2014, the new Professional Standards are a legislative instrument and will have the force of law.  In short, compliance with them will be a legal requirement.  Non-compliance is likely to leave agencies exposed to complaints to the Information Commissioner and potential adverse findings against those agencies.

The Professional Standards are likely to have a significant impact on how agencies deal with freedom of information requests on a day to day basis.  There are a number of practical impacts which they will have and some of the Standards raise interesting issues about timing around processing of FOI requests.

FOI Solutions has developed a thorough and practical training session which will in a lunchtime session  explain in detail the day to day impacts of the Professional Standards as well as raising issues to be aware of in their application.  Click on the "Other information" tab of our newsletter on the left for more information or if you want to register for this session.  Limited spaces will be available on a first in first served basis.  

Personal affairs of agency staff - the conundrum continues

There have been clear VCAT decisions in the last 18 months to the effect that personal affairs information (like names) of non-executive officers is exempt under s 33 of the Freedom of Information Act 1982 because disclosure would be unreasonable.   The high water-mark is that this principle was recognised by the Acting President of the VCAT in Proctor v Mornington Peninsula Shire Council[2018] VCAT 638.  It has been followed in numerous VCAT cases since.

Unfortunately, the Office of the Victorian Information Commissioner ("OVIC") appears to have consciously chosen not to follow the VCAT decisions in this area.  It almost seems that the OVIC does not consider itself bound by VCAT decisions on this exemption.  It is difficult to conceive of how that can be given that:

(a)  OVIC decisions are susceptible to VCAT review applications; and

(b)  The OVIC must report to the Integrity and Oversight Committee of Parliament if there have been 4 or more successful applications by agencies against decisions of the Information Commissioner in a 12 month period (s 64A(1)(b), FOI Act).

Nevertheless, the OVIC has explained in a submission to the Office of the Australian Information Commissioner in July 2019:

1.  How agencies and the VCAT treat names and other identifying information about non-executive staff as exempt from disclosure under s 33(1);

2.  But that despite this, the Information Commissioner and Public Access Deputy Commissioner make decisions that:

"reflect the view that, subject to an agency demonstrating special circumstances apply, it is not unreasonable to disclose the names and position titles of agency staff, regardless of their seniority where they are merely carrying out their usual duties or responsibilities as public servants"

In short, contrary to VCAT decisions like the Proctor case referred to earlier, the OVIC does not consider a public servant's classification to be determinative.  That is, it chooses not to follow the VCAT's decisions in this area.

It will be interesting to see how the VCAT responds to this approach.