Important Update

Update on Vic FOI Act Amendments

Parliamentary Committee Reports on Amendment Bill

Yesterday the Legal and Social Issues Committee of Parliament ("Committee") tabled a report on its inquiry into the Freedom of Information Amendment (Office of Victorian Information Commissioner) Bill 2016 ("Bill").  The report was created after the Legislative Council referred the Bill to the Committee on 21 February 2017 "for inquiry, consideration and report by 21 March 2017."

 

As the Committee had only 4 weeks to conclude its inquiry and report, the report comprised a summary of key issues, a complete transcript of evidence presented, but no recommendations.

 

After hearing that the Bill represented the "first stage" of reform of the FOI and privacy frameworks, and that further significant change is intended, the Chair of the Committee expressed regret that no detail of this anticipated further reform was shared with it.  The Chair also observed that there had been no public consultation about the Bill and, unfortunately, there was no scope to hear evidence from the FOI Officers who are at the coalface.  These concerns were echoed in the discussion in the Legislative Council when the report was tabled.

 

Some of the key issues, of a practical nature, addressed by the Committee include:

  • It referred to the proposed power of the Information Commissioner ("IC") to require an agency to conduct a further search where the IC believed the agency had failed to undertake an adequate search for documents.  It then set out a number of concerns expressed by the Law Institute of Victoria ("LIV") about the practical operation of that proposed amendment when provisions such as s 25A(1) and s 25A(5) were inserted to enable agencies to refuse to process requests.
  • In relation to new exemption consultation requirements, the Committee noted that the Acting FOI Commissioner expressed concern about third-party consultation being required "if practicable" but then he suggested that perhaps Professional Standards could be introduced to help in defining when consultation would be "practicable".
  • The LIV suggested the Bill should clarify that an agency should not release documents until third-party review rights expired.

The Committee also referred to issues that had not been addressed by the Bill including:

  • The desirability of providing for certainty as to the legal effect of a failure by the IC to conduct a review within the "required period" in s 49J.  Does that terminate the Commissioner's power to continue  with a review or not given that a VCAT-reviewable refusal decision is taken to be made by the Commissioner when the required period expires.
  • Where agencies believe, on legal advice, that the expiration of the required period means the Commissioner's power is exhausted, and the Commissioner subsequently purports to make a decision, the FOI Act provides no avenue to address this:

"As a result, agencies can effectively ignore a decision without consequence.  The provisions of the Bill do not address this issue."

 

In relation to this last point, FOI Solutions has become aware that on a number of occasions the required period has expired giving rise to a reviewable decision taken to be made by the FOI Commissioner to refuse access.  And yet the FOI Commissioner then goes on, sometimes many months or even more than a year later, to make a different decision requiring an agency to disclose documents.  On some occasions the agency, on legal advice, does not recognise that the FOI Commissioner has any power to purport to make that subsequent decision and refuses to comply with it.  The FOI Commissioner has then threatened Supreme Court proceedings seeking a declaration of of the validity of the purported decision.  It is not entirely clear whether a Court would entertain such a proceeding or even if the FOI Commissioner has power to issue such a proceeding given that on any view the functions of the FOI Commissioner were well and truly over at that stage.  Any right to pursue a remedy would lie with the applicant.  

In giving evidence about this point the Acting FOI Commissioner stated, "at the moment there is no provision in the legislation or the [Bill] that agencies actually have to comply with our decision, or appeal it to VCAT.  We have had a small number of times where I have made a decision or the previous [FOI Commissioner] has made a decision... where an agency has just ignored it and we have no power to address that."

 

Closer examination of the Committee's report revealed numerous other suggested amendments to the Bill put forward by the LIV including:

  • the current inadvertent removal of deemed refusals from any form of review.
  • the desirability of agencies being informed by the IC of the jurisdictional fact of when an application for review was received and any extension of time sought and obtained from the applicant.
  • potential conflict in roles in the IC developing professional standards (as legislative instruments - ie law) and yet the IC or Public Access Deputy Commissioner having responsibility to monitor compliance with those professional standards.

Now that the report has been tabled, it will be important to see what, if any, amendments may be made to the Bill during the Committee Stage of debate in the Legislative Council and whether the Bill will progress through to being enacted.

 

We will keep track of developments and keep clients informed.  If you would like to read the report in full, here is the link.