Boost in resources for state’s FOI watchdog

The Napthine Government has this week introduced legislation into Parliament that aims to reduce delays in the office of Victoria’s newly-created FOI watchdog.

Recent media reports have claimed the Office of the Freedom of Information Commissioner is struggling to meet its 30-day deadline for reviews and is routinely asking applicants for extensions of time.

The Office was established in November 2012 under the stewardship of Commissioner Lynne Bertolini with a brief, among other things, to review FOI decisions and handle FOI complaints. The Commissioner has the power to deal with matters relating to Victorian government departments, local councils, public hospitals, statutory authorities and boards.

In its first year of operation, the Office received more than 1,000 inquiries, 250 requests for reviews and 160 complaints.

In the seven months to 30 June 2013 (the end of the Office’s first reporting period), the decisions of more than a dozen councils were subject to applications for review. Complaints were received in relation to a similar number of councils.

The Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014 (the Bill) allows for the appointment ‘one or more’ Assistant FOI Commissioners, with Attorney General Robert Clark committing to the appointment of two Assistant Commissioners.

According to Mr Clark, this will ensure timely decisions on FOI reviews and complaints, benefiting applicants and improving the efficient use of agency resources across government.

Announcing the reforms last month, Mr Clark said additional staff would also be seconded from the Department of Justice to assist the Commissioner to develop an education program that will further enhance related training across the public sector.

The Bill provides for the FOI Commissioner to be able to refer any review or complaint to an Assistant Commissioner. An Assistant Commissioner will have all the functions, and may exercise all the powers of the Commissioner in dealing with a review or complaint.

Assistant Commissioners will be responsible to the FOI Commissioner for the due performance of their functions; however, each Assistant Commissioner will have full authority to decide the cases referred to them, and a decision of an Assistant Commissioner will be taken to be a decision of the FOI Commissioner. Consequently, the FOI Commissioner will not have the power to give an Assistant Commissioner a direction in relation to the conduct of a review or the handling of a complaint (new section 6DC).

According to a report carried by Fairfax Media last month, the Office of the FOI Commissioner currently has around 12 full-time staff. According to the article, within its first seven months, the Commissioner requested 121 extensions of time for a review, compounding, it said, the backlog the Office had been set up to address.

As noted by the FOI Commissioner in the Office’s 2012/13 annual report, the Office was established in the wake of the Victorian Auditor-General’s April 2012 report into the management of FOI, which found that within Victorian agencies there was a culture of ‘apathy and resistance to scrutiny’, ‘delays in the release of documents’ and ‘tolerance of… long-standing substandard practices particularly with regard to proactive release’ of information.

‘My aim is to ensure that Victoria’s FOI system is efficient and robust and supports the values of openness and fairness,’ Commissioner Ms Bertolini said.

An applicant seeking information under FOI may apply to the FOI Commissioner for review of a decision of an agency: to refuse access to a document; to defer access to a document; or not to waive or reduce an application fee.

Meanwhile a complaint may be made to the Commissioner about: an action taken or failed to be taken by an agency, including a decision that a document does not exist or cannot be located; a delay by a Minister in dealing with a request; or an action taken or failed to be taken by a Minister in making a decision to either defer access to a document or disclose a document that is claimed to be exempt pursuant to the personal privacy or trade secrets provisions of the FOI Act.

The Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014 was introduced into Parliament by Attorney General Robert Clark on 10 June 2014 and second read on 11 June 2014.

Further information on the Office of the FOI Commissioner is available at:


Mark Dunphy

Mark is an employment lawyer experienced in litigious and non-litigious applications of employment and industrial relations law.

Alison Baker

Alison has more than 20 years’ experience in a wide-ranging employment and privacy practice.

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