Victorian FoI legislation
Victorian FoI legislation
FoI rights in relation to Victorian government ministers and agencies exist under Victorian legislation, the Freedom of Information Act 1982 (Vic) (‘FoI Act (Vic)’), rather than Commonwealth legislation. As a result, the process for exercising FoI rights in Victoria can differ to the Commonwealth process.
This section should be referred to for FoI claims relating to information held by Victorian government ministers and agencies.
What government agencies are subject to the FoI Act (Vic)?
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 FoI Act (Vic) by the Freedom of Information Regulations 2019 (Vic) (sch 1).
The FoI Act (Vic) and its regulations can be downloaded from the website of the Victorian Information Commissioner (VI Commissioner) at www.ovic.vic.gov.au. You can also search for the names and contact details of many of the agencies subject to the FoI Act (Vic).
Office of the Victorian Information Commissioner
The VI Commissioner provides independent oversight of the Victorian public sector’s collection, use and disclosure of information. It is established under part 1A of the FoI Act (Vic) and the Privacy and Data Protection Act 2014 (Vic).
Under the FoI Act (Vic), the VI Commissioner’s key functions are to:
- promote understanding and acceptance by agencies and the public of the FoI Act (Vic) and its objectives;
- conduct reviews of decisions made by agencies and Ministers under the FoI Act (Vic);
- handle complaints made under the FoI Act (Vic);
- provide advice, education, and guidance to agencies and the public in relation to the VI Commissioner’s functions;
- develop and monitor compliance with professional standards; and
- provide advice, education, and guidance to agencies and the public in relation to compliance with professional standards.
What rights of access do I have?
The following rights of access exist under the FoI Act (Vic):
- Part III (ss 13–27): the right to access a document of an agency and an official document of a minister (other than exempt documents, which are outlined in Part IV (ss 28–38);
- Part V (ss 39–49): the right to amend personal records;
- Part VI (ss 49A–61): review rights; and
- Part VIA (ss 61A–61M): complaint rights.
How do I apply for access?
A request for access must be made in writing and sent to the agency or minister holding the documents (s 17). An agency or minister who receives a request has the duty to assist the applicant, including by transferring the request to a more relevant agency (ss 17(3), 18).
Applications to government departments and certain agencies (including Victoria Police and the VI Commissioner) can be submitted and paid for electronically via www.ovic.vic.gov.au.
A request should clearly specify the documents to which access is sought, which may include:
- what the documents relate to;
- the type of document being sought (for example, an email or a report);
- the date range of the documents; and
- where documents may be located (for example, a specific department of the agency or a specific email account). A request should be headed ‘Freedom of Information Request’, so that the intention to bring the request under the FoI Act (Vic) is clear. An application form may be used. A general application form can be downloaded from www.ovic.vic.gov.au. Alternatively, many agencies have developed their own forms. An application fee (see below) must be paid (s 17(2A)), although it may be waived or reduced in cases of hardship (s 17(2B)).
How quickly must an agency reply?
A request for access must be answered as soon as practicable, and no later than 30 days after receiving a 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 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 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).Step 2: Victorian Civil and Administrative Tribunal
After a review by the VI Commissioner, subsequent appeals may be taken to the Victorian Civil and Administrative Tribunal (VCAT) (s 50) (see www. vcat.vic.gov.au). Generally, the timeframe for lodging an application to VCAT is 60 days from the day a notice in writing of the decision of the VI Commissioner is received by an applicant (s 52 (1)-(8)). However, if an agency or minister is applying to VCAT for a review of a decision by the VI Commissioner pursuant to s50(3D), the timeframe is 14 days from receipt of the decision (s 52(9)).
Access to personal documents
Documents which would involve the unreasonable disclosure of the personal affairs of any person (including a deceased person) are exempt documents under section 33(1) of the FoI Act (Vic).
When determining whether the disclosure of a document would involve the unreasonable disclosure of personal affairs, an agency or minister must take into account whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person (s 33(2A)). Note that a document will not be considered exempt just because the mention of a person is included in it, the mention must, or must be reasonably likely to, endanger the life or physical safety of any person (s 33(2)).
Additionally, in general, an agency or minister must notify the person who is the subject of that information (or if that person is deceased, that person’s next of kin) that access to the document has been requested and seek that person’s view as to whether disclosure of the document should occur. If the person consents to disclosure (including disclosure subject to redaction of their personal affairs) they are not entitled to apply to VCAT for a review of the decision to disclose the document (s 33(2B)). If the person is a minor, an agency or minister may contact either the child’s parent/guardian or the child, or both the child’s parent/guardian and the child (s 33A).
Access to information about business
Documents which would disclose information acquired by an agency or a minister from a business, commercial or financial undertaking (the undertaking), relating to:
- trade secrets; or
- other matters of a business, commercial or financial nature which, if disclosed, would be likely to unreasonably expose the undertaking to disadvantage are exempt documents under section 34(1) of the FoI Act (Vic). When determining whether the disclosure of a document would unreasonably expose an undertaking to disadvantage, an agency or minister may take into account whether:
- the information is generally available to competitors of the undertaking;
- the information would be exempt matter if it were generated by an agency or a minister;
- the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and
- there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking (s 34(2)). Additionally, an agency or minister must notify the undertaking that access to the document has been requested and seek their view as to whether disclosure of the document should occur. If the undertaking consents to disclosure (including disclosure subject to redaction of their personal affairs) they are not entitled to apply to VCAT for a review of the decision to disclose the document (s 34(3)). If, after consultation, the agency or minister decides to disclose the document, they must notify the undertaking of the decision to disclose the document and their right to apply to VCAT for a review of the decision (s 34(3A)).
Can I amend my personal records?
If a document containing information relating to a person’s personal affairs is released to that specific person, they may request a correction or amendment of the information where it:
- is inaccurate;
- is incomplete;
- is out of date; or
- would give a misleading impression (FoI Act (Vic) s 39). Note that any corrections or amendments made to information will not have the effect of completely deleting or expunging the information from records – they will generally take the form of altering the record or placing a note on the document (s 49). An application for the amendment of personal records must:
- be in writing;
- provide an address;
- specify how the information is inaccurate, incomplete, out of date or would give a misleading impression;
- specify the amendment or correction sought; and
- be submitted directly to the agency that has the relevant document(s) (s 39). The VI Commissioner’s website provides an ‘amendment request form’, which may be used (see www.ovic.vic.gov.au/freedom-of-information/ requesting-an-amendment/). An agency has 30 days to process a request once it has been received.
How can I make a complaint?
Complaints about how an FoI request has been handled by an agency or minister can be made to the VI Commissioner (s 61A(1)).
A complaint must:
- be in writing (s 61A(2)(a));
- set out the nature of the complaint (s 61A(2)(b));
- identify the agency, principal officer or minister concerned (s 61A(2)(c)); and
- be made within within 60 days of the action or conduct occurring (s 61A(4)). The VI Commissioner’s website provides an online FOI complaints form (www.ovic.vic.gov.au/freedom- of-information/for-the-public/foi-complaints/). There is no timeframe within which a complaint must be resolved.
What fees or charges will I have to pay?
FoI applications The fees and charges that apply to making a FoI 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 FoI applications as at 1 July 2023 are set out in the table below. When will fees or charges not apply? Section 22 of the FoI Act (Vic) lists specific circumstances where charges cannot be imposed, namely:
- time spent searching for a lost or misplaced document (s 22(1)(a));
- time spent determining if a document contains exempt matter or deleting exempt matter in a document (s 22(1)(e));
- inspection of a document that should be available under Part II of the FoI Act (Vic) (s 22(1)(f)); and
- any tasks, other than making copies, a transcript or producing a document in accordance with section 19, where: – the applicant’s intended use of the document is one that is in the general public’s interest or benefit (s 22(1)(h)(i)); – the applicant is a member of the Victorian Parliament (s 22(1)(h)(ii)); or – the request is for a document containing information relating to the personal affairs of the applicant (s 22(1)(h)(iii)). Additionally, fees may be waived or reduced if:
- regarding an application fee, the payment of such fee would cause hardship to the applicant (s 17(2B));
- the request is a routine request for access to a document (s 22(1)(g)); or
- regarding photocopying, or the costs incurred in making a transcript or producing a document under section 19, the applicant is suffering financial hardship, and the request is for a document containing their personal affairs information (s22(1)(i)). Further information about fees and charges is available from the Victorian FoI website. There is also a fees and charges calculator (www.ovic.vic. g ov.au/freedom-of-infor mation/access-charg es- calculator).
Victorian Civil and Administrative Tribunal
VCAT has a tiered fee structure. An application to VCAT to review an agency’s access decision costs 70% of 64 fee units (as at 1 July 2023, this equals $712.30). For the holders of Health Care Cards, the application cost is capped at 11 fee units (as at 1 July 2023, this equals $174.90). As a general rule, in VCAT matters each party bears their own costs. When will fees or charges not apply? VCAT does not charge fees if:
- 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 statutory time limit (see ‘How quickly must an agency reply?’, above).
General enquiries
The VI Commissioner’s website (www.ovic.vic. gov.au) contains information about Victorian FoI processes.
Enquiries about making a request to an agency should be directed to the agency’s FoI officer. For many agencies this can be made online. Enquiries about review and complaint processes can be made to the VI Commissioner.