The Law Handbook 2024

1134 Section 12: Government and the individual valid request (FoI Act (Vic) s 21(1)). This period may be extended by: • up to 15 days, if consultation is required about withholding documents (see ‘Can documents be withheld?’ below); or • by up to 30 days if agreed to by the applicant (s 21(2)). The applicant must be notified in writing if there is to be an extension (s 21(4)). Can documents be withheld? Yes. Part IV of the FoI Act (Vic) (ss 28–38A) lists documents that are exempt from being accessed. Exempt documents include: • cabinet documents (s 28); • documents that, if disclosed, would prejudice the relations betweenVictoria and the Commonwealth or any other state or territory (s 29(1)(a)); • documents containing matter communicated in confidence by any government of another country of the Commonwealth or by the government of another state or territory (s 29(1) b)); • documents affecting national security, defence or international relations (s 29A(1)); • documents held or created by Victoria Police in relation to counterterrorism or the protection of critical infrastructure (s29A(1A)); • certain Court Services Victoria documents (s 29B); • certain internal ministerial working documents (s 30); • certain law enforcement documents (s 31); • certain documents relating to the Victorian Independent Broad-based Anti-Corruption Commission ( IBAC ) (s 31A); • documents affecting legal proceedings (s 32); • documents affecting personal privacy (s 33); • documents relating to trade secrets or other business, commercial or financial information (s 34); • certain documents containing material com­ municated in confidence to an agency or a government minister (s 35); • documents which if disclosed would be contrary to public interest (s 36); • certain documents arising out of companies and securities legislation (s 37); and • documents to which secrecy provisions of enactments apply (s 38). Consultation In certain circumstances, a decision about whether a document caught by sections 29, 29A, 31, 31A, 33, 34 or 35 of the FoI Act (Vic) may be exempt from disclosure is subject to a consultation process. If such consultation is required, the period for responding to a request for access may be extended by up to 15 days (s 21(2)). What can I do if I am denied access? If an agency decides to refuse access to the requested documents, it must provide a statement of reasons (s 27(1)). In general, the statement of reasons should include: • the findings of any material questions of fact, the reason for the decision and reference to any material the findings were based on (s 27(1)(a)); • if the decision relates to an agency, the name and title of the person who made the decision (s 27(1) (b)); • information advising the applicant of their right to complain to the VI Commissioner if, in certain cases, a requested document cannot be located (and that document would not be exempt if it existed) (s 27(1)(c)); and • information advising the applicant of their review rights, how they may exercise those rights and any time limits that apply (s 27(1)(d)). Step 1: VI Commissioner review In general, an applicant may ask the VI Commissioner to review an agency’s or minister’s decision to deny access to the requested documents (s 49A). The timeframe for lodging a review request is generally 28 days from the day the notice of the decision is received by an applicant (s 49B). An application for review should be in writing and identify the agency or minister concerned, the decision to be reviewed and any other prescribed information (s 49C). The VI Commissioner has the power to require a further search for documents if they reasonably believe that an agency or minister has failed to undertake an adequate search for documents that relate to a decision that is the subject of a review (s 49KA).