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Thursday, November 13, 2014

Victorian FOI Professional Standards may set new standard for agency bosses

At five minutes to midnight - well, on 31 October, days before the government went into caretaker mode on 4 November prior to the election on 29 November -  Victorian Attorney General Robert Clark issued the first Freedom of Information Professional Standards, exercising powers (Section 6L) inserted in the Victorian FOI act in 2012 with the passage of legislation to establish the position of foi commissioner.

The standards are the new benchmark for Victorian government agencies in administering their responsibilities under the Freedom of Information Act and establish "overarching principles to steer Agencies' conduct in their handling of freedom of information matters, with a view to making their actions of the highest standard."

The standards are mostly statements of what you hope you could expect of government in handling your FOI application.

 But the act, Section 6M, provides that the Principal Officer of an agency "must ensure that any officer or employee of the agency concerned in the operation of this Act complies with any professional standards that are prescribed by the regulations in performing his or her functions under this Act."

That plus this principle in the Standards seems to constitute a performance commitment that may be the first of its kind for, us at least - any comments?

Principal Officers have a responsibility to:
a.  promote an appropriate pro-release culture to ensure the transparency of public sector information

b.  ensure FOI decision makers are aware of the requirements of the FOI Act and these professional standards, and how they apply to decisions and actions in the course of processing FOI requests

c.  ensure relevant staff are provided with adequate information, guidance, training and support in applying these professional standards and the requirements and objects of the FOI Act

d.  ensure internal FOI procedures are regularly reviewed in regard to their effectiveness, compliance with legislation, case law and any guidance from the FOI Commissioner

e.  ensure their agency’s decisions comply with the requirements of the FOI Act and these professional standards

f.  provide an appropriate level of resources to ensure the timely processing of requests, and

g.  keep the FOI Commissioner informed of changes to their agency’s Principal Officer and FOI contact details.

Section 6M provides that the obligation to comply is with any professional standards that are "prescribed by the regulations." I don't see any relevant regulation published to date so maybe the Attorney General didn't get that far before campaigning intervened.

No mention under timeliness in the Standards of contact with the minister's office, a subject addressed in the Department of Justice Practice Notes issued until 2012 that are still up on the internet. Practice Note 10
“Where a decision relates to a Minister’s portfolio and/or where a Minister could be asked by the media or in Parliament to comment or explain about the response to the request or the contents of the documents once disclosed, or they are sensitive in any way, the agency is to provide a brief to the Minister. This is to be done five days prior to the proposed finalisation…”
In cases where the agency needs to brief the Minister, the five-day noting period needs to factored into how the agency divides the processing time of a maximum of 45 days."
The Ombudsman years ago raised concern about long delays as decisions sat in ministers' offices awaiting 'noting' and The Greens Greg Barber highlighted interference by ministerial staff in decision making as a result.

I don't know if the Freedom of information Commissioner has delved into that practice, but after 29 November it all starts again.

The Accountability Roundtable is keeping track of what the major parties say they will do if elected. 

A comprehensive review of the Victorian act which shows all the signs of 1983 thinking, and holding principal officers to those professional standards should be high on the list of whoever wins.

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