Freedom of Information (FOI) (Vic)

Freedom of Information (FOI) law is designed to promote accountable, transparent and responsible government, and in Victoria this law is contained in the Freedom of Information Act 1982. The Act gives the public the right to access government-held information about themselves or policies, unless there is exemption.

What information can I access?

A person can apply to the Office of the Victorian Information Commissioner to access FOI documents held by an agency or a minister that contains personal information, or is used to make policy or administrative decisions.

A “document” includes:

• any book, map, plan, graph, drawing or photo;
• any label marking or other writing which identifies or describes anything of which it forms part or to which it is attached;
• any disc, tape, soundtrack or other device in which sounds or other data are embodied and which can be reproduced;
• any film, negative, tape or other device in which one or more visual images are embodied and which can be reproduced;
• any thing which is marked with words, figures, letters or symbols which carry a definite meaning to people who can interpret them;
• any copy, reproduction or duplicate of the above, or part of a copy, reproduction or duplicate.

“Agencies” include government departments and ministers, local councils, public hospitals, public educational facilities and courts.

A person can also apply to have their personal information corrected or amended where it is inaccurate, incomplete, out of date or misleading.

An FOI application can be made online. A fee of $30 applies. The Act allows an agency 30 working days to process an application, but the department can extend this by up to 15 working days if it needs to consult with another person, or up to 30 days if the applicant agrees.

Access to the document can be granted in several ways, including as hard copy; in electronic form; as an opportunity to inspect, listen or view (if the document is sounds or images); or as a written transcript if the information is recorded as audio, or shorthand or other encoded format. Access is usually granted for 6 months.

The agency has a right to delete information from a document if it considers the information to be irrelevant to the request or exempt.

FOI Decisions

A person is not entitled to access a document:

• that contain information open to public access, as part of a public register or other record, where that access is subject to a fee;
• which contains information available to buy by the public from an agency;
• that is available for public inspection or stored for preservation or safe custody in the Public Record Office Victoria;
• stored in the State Library of Victoria.

The agency can decide to refuse to deal with an application if it believes the work in processing the request would require an unreasonable and substantial diversion of an agency’s resources, or substantially or unreasonably interfere with the performance of a government minister’s functions. In deciding this, the agency must consider the resources that would be needed to identify, find and collate documents within the agency’s filing system; or the resources that would be needed to examine the documents, consult with others, make a copy or edited copy, and notify the applicant about the request.

FOI Exempt documents

There is a range of documents which are classed as exempt under the Act, and therefore cannot be released to the public under an FOI application. Exempt documents include:

• an official record of any deliberation or decision of the Cabinet, including copies or drafts of a document, as well as documents prepared to brief a minister;
• those which would divulge information communicated in confidence by or on behalf of another country, the Commonwealth, or of a state or territory;
• those which disclose information about the security of the states, territories or Commonwealth, or the defence of the nation;
• law enforcement documents which disclose methods for preventing, detecting, investigating or dealing with crime;
• those used in an Independent Broad-based Anti-corruption Commission investigation;
• those covered by legal professional privilege;
• those which would unreasonable disclose someone’s personal information;
• those which disclose trade secrets or other critical business, commercial or financial information;
• those which should not be released in the public interest.

FOI Reviews

An FOI applicant can apply for a review of decision to refuse or defer access to a document, except if the document is exempt. A review must be sought within 28 days of written notice of the decision. The Information Commissioner has 30 days to make a determination.

The commissioner can refuse to accept the application or dismiss the review if they:

• consider the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
• consider the applicant has failed to co-operate with the review without a reasonable excuse;
• consider the review would be more appropriately dealt with by the Victorian Civil and Administrative Tribunal;
• consider a review is not appropriate in the circumstances;
• unable to contact the applicant.

The commissioner has a range of options in determining a review application. These include ordering the production of documents, facilitating an agreement between the parties, referring the review to another authority, or refusing the request for access.

For advice or representation in any legal matter, please contact Armstrong Legal.