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Freedom of Information Amendment
Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill enhances the operation of the Freedom of Information Act 1982
("FOI Act") by implementing recommendations made by the Ombudsman in
his report Review of the Freedom of Information Act tabled in Parliament on
1 June 2006, removing conclusive certificates in relation to Cabinet
documents and modernising the FOI Act by encouraging agencies to publish
more information on the Internet.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill which are--
· to provide for information to be made available on the
Internet for access to the public;
· to provide for more information to be made publicly
available without the need for a formal freedom of
information ("FOI") request;
· to remove application fees and permit the waiver of
certain charges;
· to remove provisions relating to certain conclusive
certificates;
· to provide a procedure for a person to be declared a
vexatious applicant;
· to provide for consultation before the disclosure of
certain documents (and to provide for extra time for
response to FOI requests where consultation is
undertaken);
561092 1 BILL LA INTRODUCTION 21/11/2007
· to remove the time limit on the Ombudsman dealing
with complaints about certain decisions to refuse access
to documents;
· to amend the Ombudsman Act 1973 ("Ombudsman
Act") to clarify certain aspects of the Ombudsman's
jurisdiction in relation to the FOI Act;
· to amend the Victorian Civil and Administrative
Tribunal Act 1998 in relation to applications declaring
a person to be a vexatious applicant.
Clause 2 provides that the Act will commence on a day or days to be
proclaimed. The latest date on which the Act will take effect will
be 1 July 2009. This is to give sufficient time to prepare for the
Act to be brought into operation.
Clause 3 indicates that the FOI Act is called the Principal Act in the Bill.
PART 2--PUBLICATION OF CERTAIN INFORMATION
Clause 4 repeals the existing Part II of the FOI Act and inserts a new
Part II.
New section 7 requires agencies to publish information for the
purposes of the FOI Act in accordance with standards issued by
the Attorney-General (as Minister responsible for administering
the FOI Act) under the new section 8. New section 7(1) requires
the Minister responsible for an agency to cause the agency to
publish information in accordance with those standards, while
new section 7(2) imposes a similar requirement in relation to
councils. The information is required to be published on and
from the commencement of the new Part 2.
New section 7(3) requires an agency to publish information
required under section 7 on the agency's own Internet site or
another agency Internet site or a Government Internet site.
An agency must also review and update the information
published as required by the standards.
New section 8 requires the Attorney-General, as Minister
responsible for administering the FOI Act, to issue the standards
about information to be published under Part 2. The standards
may relate to--
· the kind of information to be published;
· how frequently it is to be published, reviewed and
updated;
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· the form in which it is published (for example, that it
may be published in other forms beside the Internet,
such as in an annual report);
· the circumstances in which an agency may publish
information on behalf of another agency (for example,
circumstances in which one agency may elect to have
information published on the Internet site of another
agency).
Examples of the kinds of information that a standard may require
an agency to publish include--
· a description of the structure and functions of an
agency;
· a description of the services provided by the agency;
· details of when the agency is open for business and
service delivery points;
· a statement of the legislation which the agency operates
under and which the agency administers.
New section 8(3) provides for flexibility in the development and
application of the standards so that different sizes and resources
of agencies can be taken into account.
A standard may apply to all agencies, to all agencies subject to
specified exceptions, or to a specified agency or class of
agencies. It may make the same provision for all agencies or
different provisions for different agencies or classes of agencies.
It may also make different provisions for the same agency or
class of agency for different purposes.
In addition, a standard may require a matter affected by the
standard to be in accordance with a specified requirement and/or
approved to the satisfaction of a specified body or class of person
or body. A standard may apply, adopt or incorporate a matter,
contained in any document, wholly or partly or as amended by
the standard, as published at the time the standard was issued or
at any previous time or from time to time.
A standard may impose a discretionary authority or a duty on a
person or body, or class of persons or bodies or provide for an
exemption for an agency or class of agencies from any of the
provisions of a standard, either conditionally or unconditionally.
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A standard must not require an agency to publish a document
containing exempt matter, nor must it be inconsistent with the
requirements of the Public Records Act 1973.
The Attorney-General as Minister administering the FOI Act
must cause the standards to be published in the Government
Gazette.
New section 9 replaces the current section 9 in the FOI Act to
take account of the operation of the new Part II. It applies if--
· information containing rules, policies, guidelines or
practices which relate to a function of an agency are
required under section 7 to be published; and
· the information was not published before a person did
or omitted to an act or thing relevant to the performance
of the agency's function in relation to the person.
If this is the case, the agency, in performing that function, must
not apply the unpublished rule, policy, guideline or practice in
relation to the person, if with knowledge of that information, the
person could have lawfully avoided the detriment.
New section 10 replaces current section 12 in the FOI Act to take
account of the operation of the new Part II. Section 10 enables a
person to serve a written notice on the principal officer of an
agency stating that in the person's opinion, information required
to be published under section 7 has not been published.
Clause 5 amends existing provisions in the FOI Act to reflect the operation
of the new provisions of Part II.
Subclause (1) amends the object of the FOI Act as set out in
section 3(1)(a) to refer to the standards introduced by the new
Part II.
Subclause (2) substitutes a revised definition of applicant to refer
to new section 10(1), and to make the language consistent with
that provision.
Subclause (3) repeals section 22(1)(f) of the FOI Act.
Section 22(1)(f) refers to charges in relation to current sections 8
and 11, and will be spent on commencement of the new Part II.
Subclause (4) substitutes section 30(2) of the FOI Act to provide
that it refers to new section 7, rather than current section 8.
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Subclause (5) substitutes section 32(2) of the FOI Act to reflect
new Part II. The intention of the new section 32(2) is to ensure
that a document that contains information (such as legal advice),
which might otherwise attract legal professional privilege, is not
an exempt document by reason only of containing that
information if that information is required to be published under
section 7.
Subclauses (6) and (7) amend sections 50(2)(d) and 53(8) of the
FOI Act to substitute the cross-references to section 12(1) for
references to new sections 10(2) and 10(1) respectively.
Subclause (8) substitutes section 55(1) to reflect the new Part II.
Subclause (9) substitutes a new section 64(3)(f) of the FOI Act to
substitute the cross-reference to section 12(1) for references to
new sections 10(1) and 10(2).
Clause 6 inserts new section 69 to provide for transitional provisions
relating to Part II.
Subclause (1) provides that the amendments made by Part 2 of
the Bill will only apply to requests and applications under the
FOI Act made after the commencement of that Part.
Subclause (2) saves section 9 as in force before its repeal in
respect of a person who did or omitted to do something referred
to in section 9 before the commencement of Part 2 of the Bill.
PART 3--GENERAL AMENDMENTS
Clause 7 inserts new definitions into section 5 of the FOI Act.
Subclause (1) inserts a definition of next of kin, which the FOI
Act does not currently contain. The terms spouse and domestic
partner are used in that definition, and they are also defined in
subclauses (1) and (4).
Subclause (1) also inserts a definition of personal information.
This term replaces "personal affairs relating to a person" in the
FOI Act. Personal information is defined in terms similar to
those used in the Information Privacy Act 2000.
Subclause (2) substitutes a new definition of record as a result of
the change to personal information.
Subclause (3) inserts a new section 5(3A) into the FOI Act which
enables regulations made for the purposes of the definition of
prescribed authority to also declare a body to be a prescribed
authority only in relation to specified functions.
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Clause 8 amends section 14 of the FOI Act.
Subclause (1) inserts new sections 14(1)(ba) and (bb) into the
FOI Act.
Under these provisions a person is not entitled to use the FOI
process to obtain access to a document if--
· the document is available from an agency free of charge
where the person is provided with a copy of the
document or is advised where the document may be
obtained or inspected; or
· if the document is available on the Internet site of any
agency and the person is advised of that site.
These provisions are intended to remove the formalities of the
FOI process where the document is freely available, particularly
on the Internet.
Subclause (2) corrects section 14(1) to ensure that the
conjunction "or" is used consistently.
Clause 9 amends section 17 of the FOI Act.
Subclause (1) adds a note to section 17(1) to indicate that a
request in writing includes communications sent by email or over
the Internet.
Subclause (2) repeals sections 17(2A) and 17(2B) to remove
application fees for FOI requests.
Clause 10 inserts new section 17A into the FOI Act to make provisions
relating to FOI Online. FOI Online refers to the information
system (within the meaning of the Electronic Transactions
(Victoria) Act 2000) established by the State for the purpose
of receiving and providing information in relation to FOI.
New section 17A(1) enables the Minister administering the FOI
Act to direct agencies to participate in FOI Online, and 17A(2)
provides that an agency must comply with this direction within
the time specified by the Minister.
Clause 11 amends the FOI Act as a result of amendments in this Bill to
sections 33, 34 and 35.
Subclause (1) amends section 21 of the FOI Act. New sections
21(2), 21(3) and 21(4) enable the Minister or agency to determine
in writing that it is appropriate to extend the period set out in
section 21(1) for response to FOI requests by 30 days where
consultation occurs under section 33(2B), 34(3) or 35(1A).
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The Minister or agency must, as soon as practicable, notify the
applicant of any extension to the time for response.
Subclause (2) amends section 25A(7) of the FOI Act to reflect
that the period referred to in section 21 may be longer than
45 days as a result of the amendments.
Clause 12 inserts section 22(1)(ga) into the FOI Act, which gives an agency
the discretion to waive access charges of less than one fee unit if
it considers it reasonable to do so.
Clause 13 makes amendments in relation to personal information and to
section 33 of the FOI Act.
Subclause (1) substitutes the term "personal information" in
sections which currently refer to information relating to a
person's personal affairs.
Subclause (2) inserts new sections 33(2B) and 33(2C) into the
FOI Act. Section 33(2B) gives an agency or Minister a
discretion, in deciding whether disclosure of a document would
involve the unreasonable disclosure of personal information
about any person, to consult with the person who is the subject of
that information (or their next of kin). Section 33(2C) provides
that, if the person is consulted, the agency or Minister must
inform the person that if he or she consents to the disclosure, he
or she is not entitled to apply to VCAT for review of the decision
to disclose the document. The note to this section refers to new
section 50(3), which provides for this.
Subclause (3) amends section 33(3) of the FOI Act to make the
language of the section consistent with section 50(2).
Subclause (4) inserts section 33(3A) into the FOI Act.
This reflects new sections 33(2B) and 33(2C), and provides that
a notice under section 33(3) is not required if the person consents
to disclosure of the document.
Subclause (5) repeals section 33(9) of the FOI Act, which
defines "information relating to the personal affairs of a person".
This term has been replaced in the Act by "personal information",
which has been defined in section 5. Section 33(9) is no longer
needed.
Subclause (6) amends section 67(1) of the FOI Act to reflect the
reference to "personal information" in section 33.
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Clause 14 amends certain provisions in the FOI Act relating to the
Ombudsman.
Subclause (1) repeals sections 25A(8) and 25A(9) of the FOI Act.
This removes the requirement for the Ombudsman to consider
certain complaints within 28 days. Those complaints relate to a
refusal by agencies or Ministers to grant access to documents on
the basis that processing the request would substantially or
unreasonably divert the resources of the agency or interfere with
a Minister's functions. While this removes the requirement for
the Ombudsman to consider such complaints within 28 days, it
does not remove the Ombudsman's ability to receive or
investigate such complaints.
Subclause (2) clarifies that section 25A(10) applies to a decision
to refuse access to a document under section 25A where a
complaint has been made to the Ombudsman under the
Ombudsman Act in respect of that decision.
Subclause (3) amends section 27(1)(e) to clarify that the
applicant must be informed of the right to complain to the
Ombudsman under the Ombudsman Act in respect of a decision
by an agency or Minister that documents do not exist or cannot
be found to fulfil the request.
Clause 15 repeals provisions of the FOI Act enabling the issue of
conclusive certificates in relation to Cabinet documents, and
makes further consequential amendments.
Subclause (1) repeals section 28(4), which provides for issue
of a conclusive certificate in relation to Cabinet documents.
The subclause also repeals section 28(6), which refers only to
section 28(4) and is no longer required.
Subclause (2) amends section 28(5) to remove references to
certificates under section 28(4) which are no longer required.
Subclause (3) repeals section 50(5), which sets out Tribunal
powers in respect of conclusive certificates relating to Cabinet
documents, as a result of the repeal of section 28(4).
Clause 16 substitutes section 34(3) of the FOI Act to make provision in
relation to consent to disclosure of documents under section 34.
New section 34(3) reflects the existing section 34(3) of the FOI
Act, but adds an additional requirement that the agency or
Minister must notify the undertaking that if the undertaking
consents to the disclosure of the document, the undertaking is not
entitled to apply to VCAT for a review of the decision to disclose
the document. The note to this section refers to new section
50(3A) which provides for this.
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New section 34(3A) requires notice of a decision to disclose a
document to be given to an undertaking.
New section 34(3B) makes it clear that the notice in section
34(3A) is not required if the undertaking has consented to the
disclosure of the document.
Clause 17 inserts new section 35(1A) into the FOI Act to provide a Minister
or agency with a discretion to notify the relevant person or
government of a request for access to a document under section
35(1), and seek their view as to whether the information it
contains was communicated in confidence and whether its
disclosure would be contrary to the public interest.
Clause 18 amends section 50 of the FOI Act to reflect other amendments
made by this Bill.
New sections 50(3) and 50(3A) relate to new sections 33(2C) and
34(3), and provide that an individual or undertaking that consents
to disclosure of a document under those sections may not seek
review by VCAT of a decision to disclose the document.
New section 50(3B) clarifies that an applicant is not entitled to
seek review by VCAT of a decision of a kind referred to in
section 27(1)(e). This amendment fulfils a recommendation by
the Ombudsman to clarify that the right of complaint in relation
to section 27(1)(e) is to the Ombudsman rather than to VCAT.
Clause 19 inserts new section 70 to provide for transitional provisions in
relation to Part 3 of this Bill.
Subclause (1) provides the amendments made by the provisions
of Part 3 of the Bill apply only to applications for access,
amendment or review made on or after the commencement of
that Part.
Subclause (2) saves section 50(5) as it applies to certificates
relating to Cabinet documents issued under section 28(4), before
the commencement of clause 15 of this Bill.
PART 4--VEXATIOUS APPLICANTS
Clause 20 inserts new Part VIA into the FOI Act to enable a person to be
declared a vexatious applicant.
New section 61A(1) enables an agency or Minister to apply to the
Tribunal (constituted by the President of VCAT for the purposes
of this Part) for an order declaring a person to be a vexatious
applicant. New section 61A(2) provides that 2 or more agencies
or Ministers may make the application. New sections 61A(3) and
61A(4) reflect that a person may have a request or application
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already on foot and provide for adjustment of the relevant time
period under the Act for processing that request or application.
Sections 61A(3) and 61A(4 provide that the time from when the
agency or Minister makes an application until that application is
determined by the Tribunal or withdrawn is to be disregarded in
calculating that time.
New section 61B provides that the Tribunal may, on an
application under section 61A, make an order declaring the
person to be a vexatious applicant, and sets out the grounds for
making such an order. New section 61B(2) defines repeated
applications to make clear that applications or requests are
"repeated" notwithstanding that they may concern different
subject matter. Review is also defined to include conciliation.
New section 61C provides an example of repeated applications
constituting an abuse of the right of access, amendment or
review.
New section 61D provides that a person has the right to be heard
before the Tribunal makes an order under section 61B.
New section 61E sets out what an order under section 61B may
provide. Section 61E(a) provides that an order may prevent a
person making any request or application under the FOI Act, or
it may prevent a person making a specified type of request or
application under the FOI Act, without leave of the Tribunal.
Section 61E(b) allows the Tribunal to impose any other terms or
conditions on the order.
New section 61F sets out the grounds on which the Tribunal may
grant leave to make a request or application to a person who has
been declared a vexatious applicant.
If a person wishes to make an application for review by the
Tribunal or internal review or conciliation, but is required by an
order under section 61B to seek leave of the Tribunal before
making the application, section 61F sets out the time for applying
for leave. The person has 60 days (in case of an application for
review by the Tribunal) or 28 days (in case of an application for
internal review or conciliation) in which to apply for leave.
The time allowed under section 51(1), 51A(3) or 52 to make an
application does not commence until the application for leave is
determined by the Tribunal.
New section 61G provides that the Tribunal may at any time
vary, set aside or revoke an order made under section 61B if it
considers it proper to do so. This may be done on the application
of the person who is subject to the order or on application of the
agency or Minister who applied for the order. The provision
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requires the relevant agency or Minister to be notified if the
person makes an application. Orders made by the Tribunal under
this Part may not exclude a person's right to apply to have an
order varied, set aside or revoked.
New section 61H permits the Tribunal, in determining whether to
make an order under section 61B, to take into account any
applications or requests made before the commencement of
Part 4 of the Bill to the agency or Minister seeking the Order.
This is necessary to enable an application to be made in respect
of a person who has made repeated applications in the past.
Clause 21 amends section 57 of the FOI Act to provide that the
Ombudsman's power under that section to intervene in a
proceeding before the Tribunal does not extend to applications
brought under new Part VIA.
PART 5--AMENDMENTS TO OTHER ACTS AND REPEALS
Clause 22 amends the jurisdiction of the Ombudsman in relation to FOI
under the Ombudsman Act.
In particular, the Bill inserts new section 13(2B) into the
Ombudsman Act, which permits the Ombudsman to also enquire
into or investigate any administrative action taken under the FOI
Act by a prescribed authority as set out in the Freedom of
Information Regulations 1998. New section 13(2B) and section
13(3A)(ab) also permit the Ombudsman to enquire into or
investigate any administrative action taken under the FOI Act by
a member of Victoria Police.
Clause 23 amends the Victorian Civil and Administrative Tribunal
Act 1998.
Subclause (1) amends clause 29A of Part 8 of Schedule 1 to
reflect the substitution of the term "personal information" in the
FOI Act.
Subclause (2) inserts a new section 29E to provide that, in
proceedings under new Part VIA, the Tribunal is to be constituted
by the President.
Clause 24 amends the Loy Yang B Act 1992 as a consequence of the
amendments made to section 34 of the FOI Act by clause 16.
Clause 25 provides for the automatic repeal of this amending Act on 1 July
2010. As suggested by the Scrutiny of Acts and Regulations
Committee, all amending Acts now contain an automatic repeal
provision, which will save the time and expense of having to
repeal amending Acts in statute law revision Bills. The repeal of
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this Act does not affect in any way the operation of the
amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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