There are several differences between the The right of any person to access documents held by government agencies, except documents excluded by legislation. A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1982 (Vic) (‘FoI Act (Vic)’) and the Freedom of Information Act 1982 (Cth) (see ‘Commonwealth freedom of information legislation’, above).
Are all government agencies subject to the Act?
The FoI Act (Vic) covers Victorian Government departments, local councils and prescribed authorities, such as Victoria Police (see s 5 for the definition of ‘prescribed authority’). Additional bodies are brought under the Act by the Freedom of Information Regulations 2009 (Vic) (see sch 1). The Act and regulations can be downloaded from the website of the Victorian Information Commissioner (‘VI Commissioner’) (https://ovic.vic.gov.au).
Through the VI Commissioner’s website, you can search for the names and contact details of many of the agencies that are subject to the FoI Act (Vic).
What rights of access do I have?
In the FoI Act (Vic):
- section 13: the right to access a document of an agency and an official document of a minister (other than an exempt document) – exempt documents are outlined in Part IV (ss 28–38);
- Part V: the right to amend personal records (ss 39–49);
- Part II: the index and directories requirements (ss 7–12);
- Part VI: details of review rights (ss 49A–61); and
- Part VIA: complaint rights (ss 61A–61M).
How do I apply for access?
A request for access must be made in writing and sent to the agency holding the documents (s 17). Applications to government departments and certain agencies (including Victoria Police and the VI Commissioner) can be submitted and paid for electronically via https://ovic.vic.gov.au.
The request should clearly specify the documents to which access is sought, and should be headed ‘Freedom of Information Request’, so that the intention to bring the request under the FoI Act (Vic) is clear. An official application form may be used. Many agencies have developed their own forms; a general application form can be downloaded from https://ovic.vic.gov.au.
An application fee (see ‘Fees and charges’, below) must be paid (s 17(2A)), although it may be waived or reduced in cases of hardship (s 17(2B)).
The agency receiving the request has a duty to assist an applicant to make a Legally binding or effective. freedom of information request (s 17(3)). It is also possible for the request to be transferred to the most relevant agency once it is made (s 18).
How quickly must an agency reply?
Under the FoI Act (Vic), a request for access must be answered as soon as practicable, and no later than 30 days after receiving a valid request (s 21(1)). This period may be extended by up to 15 days, if consultation is required about withholding documents (see below), or by 30 days if agreed to by the applicant (s 21(2)).
Can documents be withheld?
Yes. 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 between Victoria 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 or of the Commonwealth or of any other state or territory (s 29(1)(b));
- documents affecting national Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions., (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. or international relations (s 29A);
- certain An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. Services Victoria documents (s 29B);
- certain internal ministerial working documents (s 30);
- certain law enforcement documents (s 31);
- certain documents relating to the Independent Broad-based Anti-corruption Commission (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 Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case. communicated in confidence to an agency or a government minister (s 35);
- documents the Providing information to another person or institution as required by a contract or other legal process. of which would be contrary to public interest (s 36);
- certain documents arising out of companies and securities Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. (s 37); and
- documents to which secrecy provisions of enactments apply (s 38).
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 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)(a)). The agency must also advise the applicant of their review rights, how they may exercise those rights and any time limits that apply (s 27(1)(d)).
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). In general, the timeframe for lodging a review request is 28 days from the day an applicant received notice of the decision (s 49B).
The VI Commissioner also has the power to require a further search for documents if he or she reasonably believes that an agency or minister has failed to To promise to do or not do something, such as returning to court on a certain day, or to hand a document over to another party in a legal proceeding. An undertaking is enforceable by attachment or like an injunction. an adequate search for documents that relate to a decision that is the subject of a review (s 49KA). Any subsequent The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. may be taken to the Victorian Civil and Administrative A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (s 50) (see Chapter 12.2: Appealing government and administrative decisions).
Fees and charges
Information about fees and charges is available from the Victorian freedom of information website (https://ovic.vic.gov.au/freedom-of-information/access-charges-calculator).
Access charges may not apply to some applicants in certain circumstances (s 17(2B)). There is no (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. to request a review of an agency’s access decision by the VI Commissioner.
The fees and charges that apply to making a freedom of information application are outlined in section 17(2A) of the FoI Act (Vic) and in the Freedom of Information (Access Charges) Regulations 2014 (Vic).
The fees and charges for freedom of information applications as at 1 July 2020 are set out in the table below.
|Application fee (2 fee units)||29.62|
|Search and retrieval, calculated per hour or part of an hour (1.5 fee units)||22.22 per hour|
|Supervision per hour, calculated per quarter hour or part of quarter hour (1.5 fee units)||22.22 per hour|
|Photocopying (black and white), per A4 page||0.20 per page|
Victorian Civil and Administrative Tribunal costs
An application to the Victorian Civil and Administrative Tribunal (VCAT) to review an agency’s access decision The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. 70 per cent of 64 fee units (as at 1 July 2020, this equals $663.50). However, there is no fee where:
- the documents to which access is sought contain information relating to the personal affairs of the applicant; or
- a government agency has failed to respond to a request within the Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. time limit, i.e. Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. refusal appeals (see ‘How quickly must an agency reply?’, above).
VCAT also has a tiered fee structure. If you are the holder of a Commonwealth Health Care Card, the application cost is capped at 11 fee units (as at 1 July 2020, this equals $162.90). As a general rule, in VCAT matters, each A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. bears their own costs.
The VI Commissioner’s website (https://ovic.vic.gov.au) contains information about Victorian freedom of information processes. Enquiries about making a request to an agency should be directed to the agency’s freedom of information officer and for many agencies can be made online. Enquiries about review and complaint processes can be made to the VI Commissioner.