The Freedom of Information Act 1982 (Vic) (FOI Act) is a fundamental element of the administrative law landscape in Victoria. It provides individuals with the right to access documents held by Victorian government agencies, promoting transparency, accountability and public access to government information. Following recent reviews and extensive consultation, the Office of the Victorian Information Commissioner's (OVIC) FOI guidelines should assist agencies with their administration of the legislation.
Background
The FOI Act was enacted in response to increasing calls for transparency and accountability in government operations during the late 20th century. It was modelled after 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 facilitating the informed participation of citizens in democratic processes.
Key provisions and mechanisms
Key provisions and mechanisms in the FOI Act include:
- right to information: Central to the FOI Act is the provision granting individuals the right to access documents held by government bodies, subject to exemptions
- application process: Individuals can make FOI requests by submitting written applications to relevant government agencies. These requests trigger an obligation for agencies to consider requests for information within specified timeframes
- exemptions and protections: The FOI Act delineates various exemptions under which agencies can refuse access to information, such as matters of national security, personal privacy and commercial confidentiality
- review mechanisms: Individuals dissatisfied with agencies' decisions regarding their FOI requests can seek internal review within the agency or external review by the Victorian Civil and Administrative Tribunal (VCAT)
- fees and charges: Agencies may levy fees for processing FOI requests, although certain categories of applicants may qualify for waivers or reductions.
Challenges and limitations in Victoria
Despite its significance, the FOI Act continues to face challenges and limitations. The recent report by the OVIC, 'The State of Freedom of Information in Victoria' (OVIC Report), highlights significant issues experienced by Victorian agencies which include:
- delays and backlogs: Government agencies often face challenges in processing FOI requests within the prescribed timeframe, leading to delays and backlogs. The OVIC Report noted the impact of the COVID pandemic in relation to staffing, increased requests and impacts on searching capabilities
- increased use of exceptions: Government 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
- resource constraints: Limited resources and staffing within government agencies may hinder their capacity to effectively implement the FOI Act and respond to FOI requests in a timely manner
- 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 guidelines for agencies to assist in applying the FOI Act. 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 in complying 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 the following aspects:
- streamlining processes: Efforts should be made to streamline FOI processes, enhance administrative efficiency and minimise delays in responding to requests. Agencies should consider resourcing options to address unexpected increases in the number or complexity of FOI requests
- application of guidelines: Adopting the approaches set out in the 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 the legislative provisions, case law and guidance, and ensure FOI officers have the training, guidance and support needed for their roles.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.