Wednesday, 8 March 2023

Office of the Victorian Information Commissioner

Process versus Outcome: Investigation into VicForests’ Handling of a Series of FOI Requests

David DAVIS (Southern Metropolitan) (17:44): I am pleased to rise and make a contribution to this reports section and draw the chamber’s attention to the report today by the Office of the Victorian Information Commissioner entitled Process versus Outcome: Investigation into VicForests’ Handling of a Series of FOI Requests. I want to say at the start I really do congratulate the information commissioner and his office on the work that they do and on this report. It is one of those very slow, detailed areas, and the commissioner in this report has pinged the behaviour of this particular agency and pointed to the excessive legalistic approach that has been adopted here. This is just a citizen making a series of FOI requests, principally about themselves, and there is the hiring of heavy-duty legal guns to make it very hard to get the simplest of information.

With the information commissioner I think you can feel the tension and the struggle that is there as he intervenes to try and unscramble this particular mess: four FOIs, several complaints, VicForests overruling the information commissioner’s ruling – the thing is a complete mess, this use of these heavy-duty legal guns to effectively belt down a citizen and make it hard for them to exercise the normal rights that you would expect under the Freedom of Information Act 1982. So this process versus outcomepoint is a very important one. He says at page 7:

The investigation identified contraventions of the FOI Act in relation to how VicForests’ consulted with the applicant. Instead of telephoning the applicant to discuss her request, VicForests sent lengthy and complex letters –

and they are in heavy legalese, I can see –

which the Commissioner considered would be confounding and difficult to process for a typical member of the public. Unnecessary queries and clarifications about the terms of the applicant’s requests delayed the release of information in practice, by extending the processing period for the requests. Challenges made by VicForests about the validity of some of the applicant’s FOI requests and complaints, including challenges to the Information Commissioner’s jurisdiction, extended the timeframe of the requests and complaints.

Considering its conduct across all the requests and complaints examined in this investigation, the Commissioner found that VicForests acted inconsistently with the objects outlined in section 3 of the FOI Act …

which says the default should be towards release of information.

The Commissioner also found that VicForests did not meet its obligations under s 16(1) to administer the Act with a view to making the maximum amount of government information promptly and inexpensively available …

I think these are very important points, and I hope that the eight recommendations that were made by the information commissioner are actually taken up by VicForests. Although I might say, as I read through this and I read through the response of VicForests and its legal operatives – and the use of these legal operatives, these expensive specialist legal operatives in FOI, makes it very difficult for normal citizens to be able to use the act properly, because they look for every twist and weave.

The truth is that, in this case, there is constant work to demand better definitions of what the words are. I have seen this in many of the FOIs that we process. They come back with requests to please explain what a simple, common word means. We now routinely go back and just say, ‘Here you go, have a look at Macquarie Dictionary, we are happy with that definition.’ You need to be prepared to push. The use of section 25 – the claim that it is too much to process, it is voluminous or the request would generate a voluminous amount of material – is excessive here, but this is right across the whole system.

So I think the information commissioner has done very good work in this particular case. I think that VicForests comes out of this looking terrible. He wants to see a proper review of their activities and has asked for two further reports in six-month tranches to press down on them and make the agency behave more appropriately. And I hope that other agencies take a close look at this report. It points directly to the cultural problem with FOI processing that is extant in this government. Right across this government there is excessive politicisation of the FOI process, and I think we have a lot to be concerned about. The section 3 override is an important point; there should be a default to information not a default to blocking freedom from information. (Time expired)