A practical guide

With many agencies enforcing policies requiring or permitting staff to work from home, questions arise about how current COVID-19 restrictions will impact on processing access requests under freedom of information legislation.

Making requests

The need to have adequate capability to be able to receive requests electronically is now all the more important. That includes being able to accept requests by email in accordance with legal obligations in the Professional Standards.

It also means, particularly if your usual premises are closed to the public, ensuring that you have in place mechanisms for payment of application fees and access charges (including deposits) using electronic means. That can include by credit card online or by electronic funds transfer if either of those is a usual means by which your agency receives payment for services. If you don’t have methods such as these, then you may need to negotiate with the applicant to identify a method acceptable to your agency.

Do you have to process?

As you would be aware, and subject to important notice pre-requisites, agencies may be able to refuse access without processing requests where processing would substantially and unreasonably divert the resources of an agency from their other operations. The resources involved here are those resources the agency currently has, not what it is able to afford or acquire – such as by recruiting or using the services of external consultants (like FOI Support) or lawyers (like our firm).

It is also about those resources, presently available to an agency, reasonably required to process a request consistent with attending to other priorities.

Clearly the steps taken by many agencies to manage the COVID-19 virus may have a substantial impact on the availability of resources required to process a request and how the use of those limited or intermittent resources are then allocated to address different priorities within an agency (whether FOI or non-FOI). Accordingly, this provision of the FOI Act permitting refusal based on the availability of resources is likely to have a greater role to play while the current situation continues or worsens.

Using deposit provisions to extend time

Even if processing a request would not substantially and unreasonably divert resources, it may still place some burden or pressure on your agency’s resourcing meaning that deferring or delaying the work required would be helpful in order to properly address an access request. This is where a little used provision in relation to deposits, recently highlighted by the Professional Standards, may have a role to play to enable you to extend the processing time.

As you may recall, where processing a request must occur and there is no basis to refuse to process, agencies must estimate what the access charges payable may be. This is done without actually searching for documents or otherwise processing the request, and on the assumption that there will be full disclosure.

Where the estimated charges exceed $50, a deposit must be paid before the request is actually processed. Where a deposit is paid, it is only on the date of payment that the agency then gets a fresh 30 days within which to process the request. If no deposit is paid, the request need not be processed.

Where a deposit is payable, the agency must send to the FOI applicant a written notice seeking payment of the deposit amount. Among the things that must now be included in that notices by operation of the legal obligations in the Professional Standards, is information outlining that the applicant may contact the agency to discuss practicable alternatives for altering the request or reducing the anticipated access. That can include by the applicant waiving the need for compliance by the agency with the 30 day time limits in s 21 for notifying a decision on the request for access.

Other time extensions

As you should be aware, even where a deposit is not payable (or has been paid), the time within which an applicant must be notified of a decision on the request can be extended. This can be done unilaterally by up to 15 days if consultation is required under certain exemptions being contemplated.

Further, an extension can be agreed with the FOI applicant for periods of up to 30 days. This can be for multiple periods of up to 30 days at a time. In the current virus-related situation, it may be that applicants may be more understanding about the impact which the COVID-19 virus is having on agencies and agree to one or more extensions of time.

No real benefit in urgent VCAT review

Of course, if the statutory timeframe (or any agreed extension) to process a request and notify a decision is not met, this gives rise to a decision taken to be made to refuse access. That refusal decision is reviewable by the VCAT.

However, as things presently stand, the VCAT is closed to the public. It has adjourned all non-critical current matters for the foreseeable future. In those circumstances, it is very unlikely that any new matters will be dealt with soon.

If you have any queries in relation to the above, or require any legal assistance in relation to any current FOI matter, please do not hesitate to contact us. All our staff are working from home but can be contacted by email and telephone in the usual way.

Important Update

COVID-19 impacts on FOI processing in Victoria - a practical guide

Issue 2 · 25 Mar 2020

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