The enactment of caretaker proceedings within state government in the lead up to an election does not impact the processing of FOI applications (although, applications may reduce significantly during this period).

The basic caretaker conventions require government to avoid major policy implementation, appointments or entering into major contracts.  They do not override an Act of Parliament. This includes the FOI Act.

This means FOI applications must continue to be processed as usual and staff critical to the FOI process (that is, Accredited FOI Officers and Principal Officers) must continue to be available as if caretaker conventions were not in effect.

FOI Applications

FOI applications that are active at the time of an election date are also required to be processed as they are ongoing business and subject to legislated timeframes.

For Ministerial Offices in particular, the FOI Act recognises the portfolio associated to the office as the ‘FOI agency’.  This means that if a new government is elected or an existing portfolio is sworn to a new Minister, the portfolio’s status of ‘FOI agency’ remains unchanged despite it moving to a new office with new staff.

Therefore, if the election sees:

• a change in government - active FOI applications must continue to be processed and determined by the new Minister’s Office.
• no change in government - active FOI applications must continue to be processed and determined by the Ministerial Office.
• no change in government but portfolio responsibilities have changed - active applications must continue to be processed and determined by the office for which the portfolio responsibility has been assigned to.

Internal Reviews

Should a Minister’s Office receive an internal review application for a determination made under a previous Minister (whether as a result of a change in government or portfolio transfer) the new Minister responsible for the portfolio is responsible for processing the internal review.

More detail on the processes to follow when agency functions or Ministerial portfolios are transferred to another agency/office is discussed below.

For applications that are almost complete or complex in nature AND the function transfer date has passed, it may be more practical for Agency 1 to finish processing with the assistance of Agency 2.  Alternatively, Agency 1 may transfer the application (or partially transfer it) to Agency 2 under section 16.

Where Agency 1 agrees to complete active FOI applications, it is advisable that it keeps Agency 2 informed of their progress.

If the FOI applicant were to lodge an internal review, it will be the Principal Officer of the agency that made the original determination who must complete the internal review.  Transferred staff in Agency 2 may need to assist Agency 1’s Principal Officer.

Once Agency 1 has dealt with any active FOI applications and the review period has passed, it should send copies of the decision and all relevant records to Agency 2 in accordance with the Managing Records through Administrative Change Guideline.

Both agencies should ensure the actions taken when handling outstanding FOI applications, whether they are completed by Agency 1 or transferred to Agency 2, are recorded accordingly for reporting purposes.

FOI applications not processed within 30 calendar days (or within a formal extension) are automatically determined as a deemed refusal.  Because of this auto-determination, overdue applications cannot be formally transferred.

There are a few options available under these circumstances:

• Agency 1 continues processing
  Agency 1 can continue to process the overdue application and make a determination under section 19(2a) and seek assistance from Agency 2 if necessary. This option is not available if Agency 1 ceases to exist as a result of the MOG changes.
• Internal review submitted by the applicant
  As mentioned previously, the Principal Officer of Agency 1 will be responsible for processing internal reviews.  Agency 1 will only have 14 calendar days (and no extension rights) to process the internal review.
• Applicant submits a new application to Agency 2
  Agency 2 can request the applicant re-submit the application to them.  This will reset the 30 calendar-day time-limit. Agency 2 should consider waiving fees and charges.

As is the case for closed applications (see below), Agency 1 should provide Agency 2 appropriate access rights to files regarding overdue applications for reference purposes.

Regardless of which option is taken, FOI applications submitted to Agency 1 that are overdue at the time agency functions are transferred must be recorded by Agency 1 as deemed refusals under section 19(2) of the FOI Act for the purpose of annual reporting.

When a function is transferred from Agency 1 to Agency 2, FOI staff transferred with the function to Agency 2 must be designated by the Principal Officer of Agency 2.

Accredited FOI Officers can no longer process and determine applications on behalf of their former agency. That is, they are no longer Accredited FOI Officers for their former agency.

Agency 1 retains responsibility for completed FOI applications prior to the date functions are transferred to Agency 2. This includes all relevant files associated with these applications.

These files should be closed and Agency 2 should be provided appropriate access rights to these files if required. For further information, please refer to steps 5 and 8 in section A of the Managing Records through Administrative Change Guideline.

If the application is formerly (or partially) transferred to Agency 2, Agency 1 should inform the applicant as per usual FOI procedure and provide them with the name and contact details of the Accredited FOI Officer in the agency now dealing with their application.

Once the administrative changes come into effect, the Accredited FOI Officers in both Agencies should amend any relevant information they provide the public on how to make FOI applications including agency contact information. The agency’s FOI Information Statement should also be amended to take account of any administrative changes.

It is possible for the function of an agency, that is subject to the FOI Act, to be transferred to an agency that is exempt from the FOI Act.  Ideally, the fact that information previously accessible through FOI may now be exempt will be considered before the function is transferred and appropriate action taken.

It may be necessary to seek legal advice to determine whether the function that has been transferred should assume the exempt status of the agency or whether their exempt status should be amended.

While the Principal Officer of the newly created agency is automatically an Accredited FOI Officer for that agency, it is recommended they designate at least one Accredited FOI Officer. Accredited FOI Officers are responsible for managing FOI applications and making determinations.

To designate a new Accredited FOI Officer, the Principal Officer should do so through an instrument of designation that satisfies section 4(1)(b) of the FOI Act. This section requires Accredited FOI Officers of most state government agencies to occupy an executive level position in the agency (or at least report to one) and to have undertaken training approved by the Minister responsible for the FOI Act.

When a new agency is created and it is determined it is subject to the FOI Act, it is recommended State Records is advised and provided a general contact, information management contact and FOI contact to ensure correspondence is sent to the correct people.

Section 9(1a) of the FOI Act requires agencies to publish an up-to-date Information Statement in a manner prescribed by regulation. Regulations under the FOI (General) Regulations 2017 require the statement be published on an agency’s website or in their annual report, or both (see section 5).

Agencies subject to Premier and Cabinet Circular 13, Annual Reporting Requirements, should publish their information statements on their website and any other appropriate means.

Section 8(1) of the FOI Act requires an agency (Agency 1), taking over the function of an agency that ceases to exist (Agency 2), to assume all responsibilities of that agency (Agency 2).

This means Agency 1 must take on the responsibility of processing, reporting and determining all FOI applications made to Agency 2 from the date it takes over the function as if it had ‘merged’.

Pursuant to section 8(2), where an agency ceases to exist and no other agency is to take over a function, the responsibilities of the defunct agency will devolve to:

a) an agency nominated by the Minister administering the FOI Act, or

b) State Records.

In this case, the relevant Minister should write to the Minister responsible for the FOI Act recommending an agency to be nominated to take responsibility for the records. The Minister, on advice, can accept this recommendation, nominate a different agency or advise that it should devolve to State Records.

When a function of government is to be transferred to an external entity, the agency remains responsible for processing any FOI applications received in relation to any records created up to the date of transfer.

The only exception to this occurs if the agreement transferring the function gives the government agency an immediate right of access to certain records held by the external entity.

Where an FOI application is made to the agency after the date of transfer, but the information requested was created prior to the transfer occurring, the agency is responsible for processing the FOI application.

If an FOI application requests information created after the date of transfer and the agency does not have an immediate right of access, the agency must notify the applicant the information is not held as per section 23(1)(b) (unless the external entity is captured under the definition of ‘agency’ under section 4 of the FOI Act).