The Office of the Victorian Information Commissioner (OVIC) has released a report into Impediments to Timely FOI and Information . The report analyses the system, processes and performance of several large and small FOI agencies. As the title suggests, the report focuses on the reasons for and possible solutions to delays in the processing of FOI requests.
What you need to know
- OVIC is closely monitoring FOI performance and has own motion powers to perform a deep dive into agencies and departments at any time;
- OVIC's focus is on late provision of materials and the systemic reasons for this;
- the report sends an early warning system to other agencies to examine their resourcing and systems and ensure they are fit for purpose; and
- your agency may wish to look at its processes for administrative (non-FOI) release of documents, to ensure FOI isn't used where there is an easier, quicker alternative.
The Freedom of Information Act (FOI Act) provides a legally enforceable right to obtain access to documents of a government agency, other than 'exempt' documents.
Once a request for information is validly made, an agency has 30 days to decide what to do in response to the request (subject to limited extensions in certain cases).
OVIC found that there has been a significant increase in delayed FOI decisions. OVIC is concerned because:
- these delays are not in accordance with the FOI Act; and
- lengthy delays may effectively deprive FOI applicants of their FOI rights.
Why the delays?
OVIC found that the following key factors contribute to late information release:
- Resourcing and efficiency issues. In many instances, agencies have inadequate staffing relative to the FOI workload.
- Inadequate FOI performance reporting and monitoring. If a decline in performance is not monitored and reported, it is not responded to promptly.
- Poor engagement with FOI applicants. The level of communication with FOI applicants varies between agencies. Some agencies communicate only through formal correspondence, which limits the possibility of narrowing the scope of FOI requests and arranging for voluntary release of information.
- Briefing of external executives and ministers on FOI requests. Some (but not all) agencies consistently require the minister or senior executives to note an FOI decision before documents are released, which leads to substantial delays.
- Legislative impediments. The FOI Act itself contains provisions which lead to delays. For example, consultation provisions may in some instances require agencies to consult with many third parties before an FOI decision is made.
OVIC raised a number of key issues for agencies to consider which it suggests could reduce delays:
Reconsider the ministerial and executive briefing processes
One striking recommendation from OVIC is that agencies should not await ministerial or executive noting before finalising a decision, commenting that briefings should be for information only and that recipients should be informed of when a decision will be made, regardless of whether they respond.
Many agencies require that ministers or senior executives note or comment on FOI requests prior to the release of information.
OVIC's view is that it is not appropriate to delay making of an FOI decision while waiting for a Minister to note the decision. It suggests agencies could consider adopting a 'triage' process, where non-sensitive requests can be processed without such approval. Where ministers or senior executives have information relevant to the request, they should be contacted earlier in the process.
Whether this suggestion is practical will depend on the relevant agency environment.
Ensure adequate staffing
OVIC identified that some agencies had insufficient staff relative to the number and complexity of FOI requests and that there is a need to increase resourcing. This may involve increasing staff numbers and seniority and expertise of those staff and having the capacity to draw on other agency staff at times of high FOI demand.
Improve communications with FOI applicants
OVIC suggests that applicants should be contacted early in the process and regular contact with applicants should be maintained. Informal communications at earlier stages can sometimes enable the narrowing of the requests and directing applicants to other avenues to access information, where available. Applicants should also be informed about the extent and causes of any delays and be provided with an apology where appropriate.
Move away from paper-based document processes
Any existing processes that rely on hard copy documents should be moved to electronic-based systems. Agencies should, for example, have procedures for moving documents between staff where documents are too large to send by email.
Utilise statutory provisions for extension of time and dealing with unreasonable requests
The FOI Act provides for extensions of time and mechanisms or dealing requests that are unreasonably large or that are unclear. Agencies can utilise these mechanisms to negotiate with an applicant to devise a request scope that is manageable.
Consider informal release of information
The FOI Act provides a right of access to documents. It does not prevent any other basis for the release of information, and specifically contemplates this course.
The VGSO often provides advice about administrative release, because it allows a tailored, risk focused and more efficient means of disclosing information where there is a basis to do so. We often see agencies use FOI to process even requests for documents an applicant has themselves lodged with the agency, or for routine or non-sensitive documents. The key to informally releasing appropriately is to understand your authorising environment and processes.
Improve monitoring and reporting practices
OVIC suggests that agencies should implement a standardised set of measures for internal FOI performance. This would allow agencies to identify and address their own performance issues.
If you need more help
The VGSO's expert team of FOI lawyers is experienced in assisting agencies with the most difficult, voluminous or sensitive of requests, as well as providing practical assistance with processes and structures.
We can help you with an individual request from decision, review and to appeals, assist you to process an FOI backlog, deal with challenging applicants or third parties and consult about best practice for processing material under the FOI act or via administrative release.
For further information regarding FOI management issues contact:
Managing Principal Solicitor
T: 03 8684 0949
T: 03 8684 0943
T: 03 8684 0941
 FOI Act s 25A(1).
 FOI Act s 16(2).
Reviewed 15 September 2021