Section 8 - Certain documents to be available for inspection and purchase

Section 8 requires an agency (including a local council) to publicly list³and make available for inspection and purchase⁴ documents relating to its ‘internal laws’. Broadly this encompasses rules, policies, procedures, or guidelines currently used by an agency to make decisions or provide advice on matters that impact on the rights or liabilities of the public – whether that impact is beneficial or detrimental.

This gives the public access to documents used by the agency to make decisions or take actions and assists the public to understand why certain decisions or actions are taken.

Section 8 only applies to documents that are currently used or may be used by agency officers; historical documents, previous versions, or documents no longer endorsed for use are not required to be listed.⁶

It is useful to consider the context and purpose of section 8 when determining if a document falls within sections 8(1)(a)(i), 8(1)(a)(ii), or 8(1)(b).

In Williams v University of Melbourne (Review and Regulation) [2021] VCAT 971, it was noted that:⁸

… a document will fall within s 8(1), if it has a certain degree of formality, and if it expresses rules or practices that are intended to promote consistent and best practice, and are sought to be applied broadly to all relevant instances of the exercise of a particular function of the agency, even if not mandatory.

…

… it is not all non-exempt documents of an agency which are to be made available under s 8. The descriptions in s 8(1) generally connote some of the more important documents, in terms of the agency’s operations, and their effect on citizens. In tandem with s 11, and other mechanisms, such as annual reports, s 8 operates to provide transparency as to the activities of the agency in a general sense. There will be many documents which are not covered by Part II, but which are nevertheless non-exempt, and available to citizens on the agency’s website, or on other public facing electronic platforms, or upon making an ordinary FOI request, or simply by asking for them.

Section 8(1) seeks to capture rules, policies, procedures, or guidelines that have a degree of formality in their use and are consistently applied across an agency.

Section 8 provides all agencies with legislative power to proactively release documents and information described in section 8, and to be transparent about the exemptions claimed over information in section 8 documents.

To further this objective, the various words and phrases in section 8 should be broadly interpreted and given a plain language meaning.

Section 8(2)(a)(i) requires all documents that fall within section 8(1) to be made available for inspection and purchase by members of the public.

In a contemporary context, and giving effect to the object of the Act, to be available for ‘inspection’ will typically mean:

• the document is publicly listed¹¹ on an agency website and can be provided to a member of the public on request, for example, by email; or
• the document is publicly listed¹² and published on an agency website making it available for download.

The term ‘purchase’ in section 8(2) should be given its ordinary meaning, in that an agency may provide a document captured by section 8(1) to a member of the public in return for payment.

There is no amount prescribed in regulations for the documents listed under section 8(1), and the Act does not provide for regulations to be made setting an amount or prescribing how the amount is to be calculated.

While imposing a cost is discouraged, if an agency chooses to impose a purchase cost for documents captured by section 8(1), the cost should only be proportionate to any costs incurred by the agency in providing access or a copy of the document.

Section 8(2)(a)(ii) requires a statement to be published ‘in the prescribed form’ outlining the documents which are available for inspection and purchase under section 8. While there is no prescribed form for section 8, an agency must implement this requirement.

As no form has been prescribed, there is no specific obligation to publish documents captured by section 8(1) in one location or under specified headings – for example, the traditional ‘Statement X’. This allows for flexibility in publishing the required documents.

A practical approach to interpreting and implementing the requirements of section 8 should be taken. Section 8 has not undergone any significant reform since it was first enacted, and its requirements are not compatible with the way modern government operates.

An agency should aim to comply with the requirements, purpose, and intent of section 8, in the context of its purpose in Part II. An agency is encouraged to consider a practical approach to publishing relevant information that takes advantage of technology such as websites and online databases.

Relevant documents may be contained on a webpage or multiple webpages that logically categorise the rules, policies, procedures, and guidelines. The use of an agency website offers ease of navigation, the ability to crosslink information, and the ability to allow the public to search for, view and download documents and information on demand.

Section 8 does not require an agency to make exempt matter available for inspection or purchase, or to publicly list an exempt document, where the listing would reveal exempt matter.¹⁶ However, where a section 8(1) document does contain exempt matter, section 8(3) promotes disclosure and transparency by still requiring the agency to, where practicable, prepare and make available an edited version of the document that removes the exempt matter,¹⁷ and to explain the nature of the matter excluded.¹⁸

Similarly, where a section 8(1) document is exempt in full, section 8(5) still requires an agency to publicly list the fact of the document’s existence if the listing can be made without disclosing exempt matter.²⁰

Note that the exemptions in sections 30(1) and 32(1) of the Act cannot be claimed over a document that falls within section 8(1).²²

Section 8(1)(a)(i) requires an agency to publicly list and make available for inspection and purchase documents that meet the following three criteria:²⁴

• The document contains interpretations or particulars of Acts or schemes administered by the agency, not being particulars contained in another Act; and
• The document is currently used by, or guides the agency or its officers:
  • to make decisions or recommendations; or
  • to provide advice to individuals outside the agency; and
• The decision, recommendation or advice is with respect to any of the following matters that a member of the public may be entitled, eligible or subject to:
  • a right – an entitlement to something offered or available;
  • a privilege – a special benefit, exemption, or immunity;
  • a benefit – an allowance or payment to which a person is entitled;
  • an obligation – a duty, contract, or constraining power to pay or do something;
  • a penalty – a punishment or payment of a sum of money or forfeiture of property or rights;
  • a detriment – a loss, damage, or injury.

Examples might include a guideline that describes how an agency issues or reviews fines in accordance with an Act; a policy on deciding if a claimant if entitled to compensation under a scheme.

Section 8(1)(a)(ii) requires an agency to publicly list and make available for inspection and purchase documents that meet the following three criteria:²⁶

• The document is a manual, rule of procedure, statement of policy, record of decision, letter of advice to a person outside the agency, or a similar document containing rules, policies, guidelines, practices, or precedents; and
• The document is currently used by, or guides the agency or its officers:
  • to make decisions or recommendations; or
  • to provide advice to individuals outside the agency; and
• The decision, recommendation or advice is with respect to any of the following matters that a member of the public may be entitled, eligible or subject to:
  • a right – an entitlement to something offered or available;
  • a privilege – a special benefit, exemption, or immunity;
  • a benefit – an allowance or payment to which a person is entitled;
  • an obligation – a duty, contract, or constraining power to pay or do something;
  • a penalty – a punishment or payment of a sum of money or forfeiture of property or rights;
  • a detriment – a loss, damage, or injury.

Examples might include a policy that describes how an agency issues or reviews fines; a manual detailing how an agency handles complaints; a procedural manual or rules for providing grants.

Section 8(1)(b) requires an agency to publicly list and make available for inspection and purchase documents that meet the following three criteria:²⁸

The document contains information about:

• the procedures to be employed in the enforcement of Acts or schemes; or
• the objectives to be pursued in the enforcement of Acts or schemes; and
• The document is currently used by, or guides the agency or its officers in enforcing Acts or schemes administered by the agency; and
• A member of the public might be directly affected by that enforcement.

Examples might include a manual detailing how a particular profession is regulated, or professional scheme administered; or a policy detailing how an agency enforces a particular statutory function.

Section 9 states that no individual can suffer a detriment by virtue of not having complied with a rule, policy, guideline, or practice that was not listed or made available for inspection and purchase under section 8.

An agency is required to review its compliance with section 8 at least once every twelve months.³⁰ An agency should take the most practical and efficient approach to keeping this information up to date. This may include updating or adding new rules, policies, procedures, or guidelines on a regular basis.