Frequently Asked Questions

Freedom of Information in Victoria

The Freedom of Information Act 1982 was created to promote openness, accountability and transparency in the Victorian public service by giving the public the right to access government information.  The object of the Act is to ‘extend as far as possible the right of the community to access documents in the possession of the Government of Victoria’.

All members of the public have the right to apply for access to documents held by Ministers and agencies including departments, hospitals, schools, TAFE and universities.

The FOI Act allows a person to request documents held by a Minister or agency. The agency may determine that the document is exempt, the document does not exist or can not be located or that further clarification from the applicant is required.

The FOI Act sets out that an FOI request must be made in writing to the Minister or agency who holds the document requested. The applicant must also include a description of the documents being requested. This description should be specific and focused enough to enable the FOI officer to locate and identify the relevant documents easily.

An application fee must also be paid. The applicant may request a waiver or reduction of the application fee if payment of the fee would cause hardship to the applicant.

Requests can be made by e-mail, post or facsimile. More information can be found here.

If the Minister or agency is not in possession of the documents requested, the request may be transferred to another agency who will process the request.

If the Minister or agency considers the request is too vague or unclear, they will contact the applicant to give them an opportunity to provide further information to clarify their request. Once a request is sufficiently clear to enable the Minister or agency to identify the documents, it will become a valid request.

The Minister or agency has 45 days to respond to the request after the day it was received. Please note, the 45 days starts from the date the agency receives a valid request, and payment of the application fee (if required). The 45 days does not start on the date the applicant sends the request to the agency.

Information can only be requested under FOI from government Ministers and agencies.

Agencies include:

  • government departments
  • government agencies
  • public hospitals
  • government schools, TAFE and universities
  • local councils

There are a number of government agencies that are exempt from FOI, including:

  • the Director of Public Prosecutions
  • the Public Advocate
  • the Solicitor-General

Documents cannot be requested under FOI from any non-government entity such as doctors or private companies.

Document is a general term used to describe information held by Ministers and agencies. A document can be:

  • a document in writing
  • a photograph
  • a book
  • a map or plan
  • a graph
  • a drawing
  • an audio recording or  video recording
  • a labelling and index systems
  • a computer document, file or spreadsheet
  • any words, figures, letters or symbols which contain meaning

Although many documents held by Ministers and agencies are stored digitally and are therefore easily accessible, some documents are held in hard copy (i.e. on paper, video, audio reel etc.). These documents are often housed in secondary storage facilities away from the Ministerial or agency offices.

An applicant is entitled to access a document unless the document is exempt. However, if it is possible to release a document with exempt material deleted, an agency is obliged to do so if the applicant so wishes. While documents should be released with exempt material deleted wherever practicable this should not be done if the document as released would then be meaningless, misleading or unintelligible. More than one exemption may apply to a single document.

Exemption Description
Cabinet documents  

In Victoria, the Cabinet is the council of senior Ministers who are empowered by the Victorian Government to make decisions on its behalf. The deliberation and consultation which takes place in the Cabinet is done so in private to allow Ministers to express their views frankly and openly. This practice allows for open debate with the goal of reaching a consensus on issues that maintains a united public front. Cabinet documents are exempt under the FOI Act.

 

Matters communicated by other States  

Federal Government, the Territories and other States have constant lines of communication with Victorian Government Minsters and agencies. This communication can be requested through FOI unless releasing it would be contrary to the public interest and the release of documents would damage relations between Victoria and the Commonwealth, Territories or other States.

 

Law enforcement documents  

A document may be exempt if its disclosure would:

  • prejudice the investigation of a breach of the law or prejudice the enforcement of the law;
  • prejudice the fair trial of a person, or the impartial adjudication of a particular case;
  • disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;
  • disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or invasions of the law; or
  • endanger the lives or physical safety of persons engaged in the enforcement of the law, or persons who have provided confidential information in relation to the enforcement or administration of the law.

 

Internal working documents  

Ministers, Minster’s officers’ and public service officers provide opinions, advice, recommendations, conduct consultation and deliberate. Documents created in the course of these activities can be provided under the FOI Act unless their release would be contrary to the public interest.

 

Documents affecting legal proceedings  

Any document which is subject to legal professional privilege or client legal privilege is exempt under the FOI Act.

 

Documents affecting personal privacy  

Any document which, if released, would unreasonably disclose information about a person (including a deceased person), is exempt under the FOI Act. This includes any information that identifies a person or discloses their address or location.

 

Documents relating to trade secrets etc.  

Documents held by agencies or Ministers that are acquired from a business or company are exempt under the FOI Act if the document relates to trade secrets or other matters of a business, commercial or financial nature and disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage.

 

Documents containing material obtained in confidence  

A document is exempt if it contains information that has been communicated in confidence by a person or entity to an agency and the release of the information would be contrary to the public interest.

 

Disclosure contrary to public interest  

A document is exempt on the ground that it would be contrary to the public interest if the release of the document would have a negative impact on the economy of Victoria or local council or would negatively impact the running of agencies.

 

Documents to which secrecy provisions of enactments apply  

A document is exempt if another piece of legislation prohibits the release of information contained within the document.

 

Ministers and agencies must make a decision regarding an FOI request within 45 days.

The decision can be:

  • to release the document in full;
  • to release the document in part;
  • to exempt the document in full; or
  • that there are no relevant documents in the possession of the Minister or agency.

If documents are to be released, the Minister or agency will contact the applicant to arrange for provision of the documents. Access charges may apply and must be paid before the documents are released.

General questions about the FOI Commissioner

The key responsibilities of the FOI Commissioner are to:

  1. promote understanding of the FOI Act;
  2. provide advice, education and guidance to government departments, councils, other organisations and the public about the FOI Act and the role of the FOI Commissioner;
  3. deal with complaints about the handling of FOI requests by agencies and Ministers;
  4. if requested, review FOI decisions made by agencies; and
  5. report to Parliament about the operation of the FOI Act.

The FOI Act applies to documents relating to the administrative processes of the FOI Commissioner, but it does not apply to documents held by the FOI Commissioner that are the subject of or disclose information in relation to a review of an FOI decision or a complaint to the FOI Commissioner.

In practical terms, this means that an FOI application may only be made to the FOI Commissioner to access its administrative documents.

The Accountability and Oversight Committee, which is a Joint House Committee of the Parliament, monitors and reviews the performance of the FOI Commissioner, considers any complaints about the FOI Commissioner and reports to Parliament about the FOI Commissioner as required.

The purpose of Victoria’s FOI Act is to extend as far as possible the right of the community to access information held by government departments, local councils, Ministers and other bodies subject to the FOI Act.

In general, a person has the right to obtain access to documents of agencies and official documents of Ministers, other than exempt documents.

Ministers and agencies are required to administer the Act with a view to making the maximum amount of government information promptly and inexpensively available to the public.

Questions in relation to reviews

The FOI Commissioner does not have the power to review decisions:

  • involving Cabinet documents
  • concerning documents affecting national security, defence or international relations
  • made by Principal Officers or Ministers.

The Victorian Civil and Administrative Tribunal will continue to review these types of decisions.

When an agency advises an applicant about its decision in relation to an FOI application, it must inform the applicant of their right for a review of the decision and the authority to which the application should be made.  In most instances this will be the FOI Commissioner.

In conducting a review, the FOI Commissioner must follow the rules of natural justice.  This means that the FOI Commissioner must conduct each review in a timely, efficient and fair manner with as little formality and technicality as possible.  The FOI Commissioner must also give each party a reasonable opportunity to make submissions in relation to the review.

The FOI Commissioner will initially seek to conduct a review on an informal basis. This may involve the FOI Commissioner making preliminary inquiries to determine the facts and issues in relation to the review as well as to determine whether the matter can be resolved by agreement between the parties.

Following the preliminary inquiry stage the FOI Commissioner may consider taking a number of actions.

This could include:

  • dismissing the review, at any stage, if considered appropriate to do so
  • referring the matter that is the subject of the review back to the agency to reconsider and make a fresh decision
  • facilitating an agreement between the parties.

The FOI Commissioner will review and make its own decision about the application, if required to.

If the FOI Commissioner makes a decision this will have the same effect as a decision of an agency.

No, the FOI Commissioner has discretion not to accept an application for review, or to dismiss a review at any stage after considering a number of factors.  This discretion ensures the appropriate use of the FOI Commissioner’s resources.

If the FOI Commissioner exercises this discretion, applicants retain the right to appeal a decision of an agency not to grant access to a document to the Victorian Civil and Administrative Tribunal.

An application for review by the FOI Commissioner must be made within 28 days of the applicant receiving written notice of an agency’s decision

To apply for a review of an FOI decision by the FOI Commissioner click here. You may also write to the FOI Commissioner to request a review. You must identify the FOI decision you wish to have reviewed and the agency that made it. Applications may be posted to:

Freedom of Information Commissioner

PO Box 24274

MELBOURNE   VIC   3001

Alternatively, you may send applications to enquiries@foicommissioner.vic.gov.au.

To assist the FOI Commissioner, please include the following in your application for review:

  • A copy of your original FOI request to the Agency
  • A copy of the Agency’s decision letter
  • A brief explanation as to why you disagree with the Agency’s decision

Written submission

Section 49H of the FOI Act requires the FOI Commissioner to give each party the opportunity to make a written submission regarding the review. The written submission is your opportunity to tell the FOI Commissioner why you disagree with the original FOI decision and provide additional information that you believe may help the FOI Commissioner conduct the review. There is no requirement to give a written submission and you may feel that your application for review contains adequate information for the FOI Commissioner to conduct the review.

Section 49H of the FOI Act requires the FOI Commissioner to give each party the opportunity to make a written submission regarding the review. The written submission is your opportunity to tell the FOI Commissioner why you disagree with the original FOI decision and provide additional information that you believe may help the FOI Commissioner conduct the review. There is no requirement to give a written submission and you may feel that your application for review contains adequate information for the FOI Commissioner to conduct the review.

Outcome Description
Make a fresh decision  

The FOI Commissioner may make a fresh decision as to whether the documents subject to the review should be released and whether exemptions apply. If either the applicant or the Agency disagree with the FOI Commissioner’s decision, an application may be made to the Victorian Civil and Administrative Tribunal (the Tribunal) for review of the decision. An application must be made within 60 days of the fresh decision.

 

Dismiss the request for review  

The FOI Commissioner may dismiss the request if it is frivolous, vexatious, misconceived, lacking in substance, not made in good faith, is more appropriately dealt with by the Tribunal, is considered not appropriate in the circumstances or if the applicant fails to co-operate or is not contactable. If the FOI Commissioner dismisses a review and the applicant disagrees, they may apply to the Tribunal for a review of the Agency’s decision.

 

Seek a negotiated agreement  

When conducting a request for review, the FOI Commissioner may facilitate a negotiated agreement between the applicant and the agency. The agreement must be in writing.

 

Refer the request back to the agency for a fresh decision  

After making preliminary inquiries, the FOI Commissioner may refer the request back to the agency to reconsider, if it appears reasonably likely the agency would make a fresh decision that would be satisfactory to the applicant. The FOI Commissioner must seek the applicant’s agreement to do so.

 

Agency revokes its original decision  

An Agency may revoke its original decision during a review and make a fresh decision. If the applicant agrees with the Agency’s fresh decision, the FOI Commissioner must dismiss the application for review.

 

If the FOI Commissioner has not completed the review within 30 days or any longer period of time agreed by the applicant, then the applicant may apply to the Victorian Civil and Administrative Tribunal for a review of the decision.

If you do not apply to the Victorian Civil and Administrative Tribunal, the FOI Commissioner will continue to conduct the review.

If the FOI Commissioner does not complete a review within the 30 day timeframe (or any longer timeframe to which you have agreed), the Commissioner is regarded as having made a decision to refuse access.

You can apply to VCAT for a review if the FOI Commissioner has not completed your review within the 30 day timeframe (or any longer timeframe to which you have agreed). VCAT will treat this as a decision of the FOI Commissioner to refuse access to the document, defer access or not amend personal information, as the case requires (a “deemed refusal”). There is some uncertainty whether a time limit applies to an application to VCAT from a deemed refusal of the FOI Commissioner.  Until that is clarified, the safest course is to apply to VCAT within 60 days of the date you should have received the FOI Commissioner’s decision.

Yes, the FOI Commissioner can refer matters arising out of or in relation to a review to another authority where the matter falls within that authority’s jurisdiction.

The FOI Commissioner will consult with the relevant authority prior to referring the matter.

The FOI Commissioner’s role in conducting the review is not affected by any referral it makes.

Yes, decisions of the FOI Commissioner can be appealed to the Victorian Civil and Administrative Tribunal.

Generally, an application must be made within 60 days from the date on which you are given the notice of decision of the FOI Commissioner.

If the FOI Commissioner has decided to release a document that contains information relating to your personal affairs or business, commercial or financial information of a business it will notify you if you are affected.

The FOI Commissioner will also advise you of your right to make an application to the Victorian Civil and Administrative Tribunal for review of the FOI Commissioner’s decision.

Questions in relation to complaints

The Freedom of Information (FOI) Commissioner has the power to consider complaints about the handling of FOI requests by agencies and Ministers.

The FOI Commissioner can handle complaints about an action taken or failed to be taken by an agency in the handling of an FOI request. Complaints regarding an agency can include:

  • where the agency decides a requested document does not exist or cannot be located;
  • where there is a delay by the agency in processing an FOI request.

The FOI Commissioner can handle complaints about a Minister where there is:

  • a delay by the Minister in dealing with an FOI request;
  • a decision by the Minister to defer access to information; or
  • a decision by the Minister to release personal or commercial information affecting a third party.

The FOI Commissioner cannot handle complaints about a Minister’s decision that a document does not exist or cannot be located.

The FOI Commissioner will deal with complaints in private and, where possible, will resolve issues informally.

The following people and organisations can complain to the FOI Commissioner:

  • a person who has made an FOI request and has a complaint about it
  • a person, or next of kin of a deceased person, whose personal affairs may be disclosed if a document was released, or
  • a business, commercial or financial undertaking if commercial information about that business or organisation may be disclosed if a document was released.

A complaint must be made within 60 days after the action or conduct you wish to complain about occurred.

A complaint must be in writing. It must set out the nature of the complaint and identify the agency or Minister concerned.

To lodge a complaint to the FOI Commissioner click here. You may send complaints to enquiries@foicommissioner.vic.gov.au.

Alternatively, you may write to the FOI Commissioner to lodge a complaint. You must set out the nature of the complaint and the agency or Minister concerned. Complaints may be posted to:

Freedom of Information Commissioner

PO Box 24274

MELBOURNE   VIC   3001

Once your complaint has been received, it will be assessed to ensure it is within the jurisdiction of the FOI Commissioner. The FOI Commissioner may decide not accept a complaint or to dismiss a complaint at any time. The FOI Commissioner can also refer a complaint to a more appropriate person or body.

If the complaint is within jurisdiction, you will be sent a letter advising your complaint has been accepted and requesting any additional information required by the FOI Commissioner. The FOI Commissioner will then make preliminary inquiries with the agency in order to determine how best to resolve the complaint.

The FOI Commissioner will implement a number of alternative dispute resolution approaches to resolve complaints.

First, the FOI Commissioner may try to resolve a complaint informally. This may include making preliminary inquiries and consulting with a complainant and the relevant agency or Minister about the facts and issues of the complaint. At this point, the FOI Commissioner may also consult with another person if they may be affected by the complaint. If the FOI Commissioner decides that a complaint can be resolved informally, the FOI Commissioner will take reasonable steps to resolve the complaint.

Next, if a complaint cannot be resolved informally, the FOI Commissioner may consider conciliation.

If a complaint cannot be conciliated, the FOI Commissioner will deal with the complaint. The complainant and the agency or Minister, as applicable, will have a reasonable opportunity to make submissions in relation to the complaint and may be asked to produce documents or provide information. The FOI Commissioner will deal with the complaint with as little formality and technicality as possible.

After considering the complaint and any submissions and documents received, the FOI Commissioner may make any recommendations to the agency or the Minister, as applicable, and notify the complainant and any other party .

A complaint can be made to the FOI Commissioner about the actions or decision of a Minister in relation to an FOI request including:

  • delay in dealing with an FOI request,
  • a decision to defer access to a document, or
  • a decision to release a document containing another person’s personal or commercial information.

The Minister has an obligation to cooperate with the FOI Commissioner in dealing with the complaint.

No, since 1 December 2012, the Victorian Ombudsman no longer deals with complaints about FOI.

The Victorian Ombudsman will also continue to be responsible for matters that arise under the Whistleblower Protection Act 2001.

Questions in relation to reporting obligations

The FOI Commissioner is required to report annually to Parliament on the operation of the FOI Act.

In addition, the FOI Commissioner must report to the Joint House Parliamentary Accountability and Oversight Committee.

The Ombudsman retains responsibility for investigating matters which arise under the Whistleblowers Protection Act 2001.