Response to public commentary on OVIC’s report into the handling of four related FOI requests
9 March 2023
VicForests is, and always has been, committed to meeting its obligations diligently under the FOI Act and takes its obligations under the Act very seriously.
This is consistent with the findings of the report, which includes, for example the following statement “the Commissioner was satisfied that VicForests’ staff did not intentionally delay or obstruct the applicant’s requests” (OVIC’s report, p.65). OVIC also concluded that VicForests’ conduct satisfied many of the procedural and substantive requirements of the FOI Act as reflected in the Commissioner’s findings, including:
The applicant’s original first request did not meet the requirements of the FOI Act and VicForests provided the applicant with a reasonable opportunity to consult on the original first request.
In responding to the applicant’s first complaint, VicForests cooperated with and assisted the Information Commissioner.
VicForests was entitled to be satisfied that the work involved in processing the second request and the revised second request would substantially and unreasonably divert it from its other operations and met its obligations to consult with the applicant before refusing her request.
The applicant’s original fourth request did not meet the requirements of the FOI Act.
VicForests provided the applicant with a reasonable opportunity to consult on the third and fourth requests under the Act.
There are matters raised in the OVIC report that VicForests does not accept, in particular the finding that VicForests failed to comply with professional standards by communicating in writing instead of telephoning the applicant. We note that the relevant Practice Note issued by OVIC does not specify the mode of communications required to communicate with an applicant and does not suggest that failure to do so by telephone would be a breach of the Professional Standards.
In relation to imputations made because the applicant is yet to receive the information she says she is seeking, it is important to note the following:
VicForests was unaware of the allegations the applicant was seeking to prove when her applications were made in July 2020, March 2021 and August 2021. Had the applicant followed the helpful guidance on OVIC’s website on how to make an FOI application, including advice to let the agency know why information is being requested, VicForests would have been in a better position to process her requests.
After the allegations of surveillance were publicly aired in November 2021, the VicForests Board of Directors engaged RSM Australia to conduct an independent external forensic investigation into these historical allegations.
This independent forensic review did not find any documents about the surveillance of the applicant despite “comprehensive review of VicForests’ financial and vendor records, physically archived invoices, review of emails, review of VicForests Board reports including management and legal reports to the Board” (RSM report, p. 2.).
The report by RSM, which followed an investigation conducted after this series of FOI requests, was provided to the applicant in line with the third party consultation requirements under Victoria’s Freedom of Information laws.
VicForests was not solely responsible for many of the delays noted by OVIC. There were several periods of lengthy delays where responsibility lay with either the Information Commissioner, or with the applicant (see Attachment 1 below).
VicForests respects the Commissioner’s role in maintaining oversight of the regime established by the FOI Act and values the assistance that might be provided by the Commissioner to resolve disputes between applicants and decision-makers.
A comprehensive response to the Commissioner’s report by the Chair has been published as part of OVIC’s report. This response is also available here.
VicForests welcomes OVIC’s recommendations about further improvements to ensure we continue to manage our obligations under the FOI Act.