Victorian freedom of information legislation
Freedom of information 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 freedom of information rights in Victoria can differ to the Commonwealth process.
This section should be referred to for freedom of information claims relating to information held by Victorian government ministers and agencies.
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The FoI Act (Vic) covers a wide range of Victorian Government bodies, including:
Victorian Government departments;
local councils;
Victorian ministers; 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). Bodies which are broadly not subject to the FoI Act (Vic) include:
private companies that are not controlled by the government;
agencies of the Commonwealth and other states and territories; and
courts and holders of a judicial office insofar as the request relates to their judicial functions.
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The Victorian Information Commissioner (‘VI Commissioner’) provides independent oversight of the Victorian public sector’s collection, use and disclosure of information. It is established under Part IA of the FoI Act (Vic) and the Privacy and Data Protection Act 2014 (Vic) and is supported by the Office of the Victorian Information Commissioner (OVIC).
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.
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The following rights 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.
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A request for access must be made in writing and sent to the agency or minister holding the documents (s 17). A database containing contact details for all Victorian agencies is available at www.ovic.vic.gov.au. 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 through an online portal via www.ovic.vic.gov.au. If a particular agency is not listed on the online portal, applications will need to make a request directly to the agency using their contact details, which can be found on OVIC’s website.
When making a request, it can be helpful to include specific details to assist the agency or minister to process the request in a timely manner. This may include, for example:
what the documents relate to (for example, a complaint made, an interaction with an agency, or a decision that an agency made about a project or issue);
the type of document being sought (for example, an email, report or CCTV footage);
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).
It can also be helpful to exclude any documents or information from the scope of the request that are not considered relevant, such as drafts or another person’s personal or commercially sensitive information.
An application fee must be paid (s 17(2A)), or the agency or minister must have agreed for the fee to be reduced or waived in cases of hardship (s 17(2B)). A request is not valid until the agency waives the application fee or the applicant pays the reduced fee.
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.
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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)).
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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 agency working documents (s 30);
certain law enforcement documents (s 31);
certain documents relating to the Victorian Independent Broad-based Anti-corruption Commission (s 31A);
documents affecting legal proceedings (s 32);
documents containing personal privacy information (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 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 in other legislation applies (s 38).
OVIC’s freedom of information guidelines provide further details and examples of the application of the exemptions under the FoI Act.
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Documents exempt under sections 29, 29A, 31, 31A, 33, 34 or 35 of the FoI Act (Vic) may be 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)).
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If an agency decides to refuse access to the requested documents or refuses to amend information following a request, 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 of review rights, how they may be exercised and any time limits that apply (s 27(1)(d)).
Step 1: Victorian Information 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).
An application for review of an agency’s or minister’s decision must:
be made in writing within 28 days of receiving the agency’s or minister’s written decision;
identify the name of the relevant Victorian public sector agency or minister that made the decision; and
identify the freedom of information decision you want reviewed.
An application can be made online via OVIC’s website or by downloading a review form and emailing it to enquiries@ovic.vic.gov.au.
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 (ss 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 section 50(3D), the timeframe is 14 days from receipt of the decision (s 52(9)).
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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)).
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).
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A document is exempt if it would disclose information acquired by an agency or a minister from a business, commercial or financial undertaking relating to (s 34(1)):
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.
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)).
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Complaints about how a freedom of information 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 60 days of the action or conduct occurring (s 61A(4)).
OVIC’s website provides an online freedom of information 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.
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Freedom of information applications
The fees and charges that apply to making freedom of information applications are outlined in section 17(2A) of the FoI Act (Vic) and in the Freedom of Information (Access Charges) Regulations 2014 (Vic). The application fee and hourly charges for processing a request are subject to increase on 1 July each year. The application fee as at 1 July 2024 is $32.70. Further information regarding fees is available on the OVIC website: ovic.vic.gov.au.
When will fees or charges not apply?
Fees may be waived or reduced if:
the payment of a 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 (s 22(1)(i)).
Additionally, section 22 of the FoI Act (Vic) lists specific circumstances where charges cannot be imposed, including, for example, time spent searching for a lost or misplaced document (s 22(1)(a)).
Further information about fees and charges, including a fees and charges calculator, is available from the OVIC website: www.ovic.vic.gov.au/freedom-of-information/access-charges-calculator.
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VCAT fees are set by the Victorian Government and are updated on 1 July each year. The standard fee for an individual is $731.60 (as at 1 July 2024). Further detail can be found on the VCAT website: www.vcat.vic.gov.au/fees. 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).
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OVIC’s website (www.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. For many agencies this can be made online. Enquiries about review and complaint processes can be made to OVIC.
Commonwealth freedom of information: Managing my information
Chapter: 12.3: Freedom of information law
Contributor: Louis Chiam, Partner; Julia Arrighi, Lawyer; and Steven Lee, Associate, Allens
Current as of: 1 September 2024
Law Handbook Page: 1027
Next Section: More information
