Victorian freedom of information legislation

There are several differences between the Freedom of Information Act 1982 (Vic) (“FoI Act (Vic)”) and the Freedom of Information Act 1982 (Cth) (seeCommonwealth freedom of information legislation”).

In 2017, the Victorian Government reviewed the FoI Act (Vic) and introduced amendments that commenced on 1 September 2017.


NOTE

On 1 September 2017, the Victorian Freedom of Information Commissioner and the Victorian Commissioner for Privacy and Data Protection merged into a single office, the Victorian Information Commissioner.


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”) (http://foicommissioner.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):

the right to access a document of an agency and an official document of a minister (other than an exempt document) is conferred by section 13 – exempt documents are outlined in part IV (ss 28–38A);

the right to amend personal records is conferred in part V (ss 39–49);

the index and directories requirements are found in part II (ss 7–12);

review rights are detailed in part VI; and

complaint rights are outlined in part VIA.

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 the freedom of information website (www.foi.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 to make the written application. Many agencies have developed their own forms; a general application form can be downloaded from the freedom of information website (www.foi.vic.gov.au).

An application fee (seeFees and charges”) 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 valid 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.

These 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 security, defence or international relations (s 29A);

certain Court Services Victoria documents (s 29B);

certain internal ministerial working documents (s 30);

certain law enforcement documents (s 31);

certain documents relating to 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 communicated in confidence to an agency or a government minister (s 35);

documents the disclosure of which would be contrary to public interest (s 36);

certain documents arising out of companies and securities legislation (s 37);

documents to which secrecy provisions of enactments apply (s 38); and

documents relating to a closed meeting of a local council (s 38A).

In certain circumstances, a decision about whether a document caught by section 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 undertake an adequate search for documents that relate to a decision that is the subject of a review (s 49KA). Any subsequent appeal may be taken to the Victorian Civil and Administrative Tribunal (s 50) (see Appealing government and administrative decisions).

Fees and charges

Information relating to changes to fees and charges is available from the Victorian freedom of information website (www.foi.vic.gov.au).

Access charges may not apply to some applicants in certain circumstances (s 17(2B)). There is no charge 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 2018 are set out in the table below.

Fees and charges related to freedom of information applications

$

Application fee (2 fee units)

28.90

Search and retrieval, calculated per hour or part of an hour (1.5 fee units)

21.70 per hour

Supervision per hour, calculated per quarter hour or part of quarter hour (1.5 fee units)

21.70 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 costs 70 per cent of 64 fee units (as at 1 July 2018, this equals $647.40). 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 statutory time limit, i.e. deemed refusal appeals (seeHow quickly must an agency reply?”).

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 2018, this equals $158.95).

As a general rule, in VCAT matters, each party bears their own costs.

General enquiries

The Victorian freedom of information website (www.foi.vic.gov.au) and the VI Commissioner’s website (http://foicommissioner.vic.gov.au) contain 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.