Section 14 - Part not to apply to certain documents
Extract of legislation
The purpose of section 14(1) is to ensure government information, which is available on the agency’s website or via another means of public access, is not subject to access under the Act. For example, a title search or marriage certificate are documents available from an agency for a fee.
Broadly, section 14(1) excludes from the operation of the Act, documents that are available on the agency’s website or available to the public under other access arrangements.4 This means that the right of access does not apply to documents that fall within one of the categories in sections 14(1)(a)-(d).
Section 14(1) is not an exemption. It aims to reduce duplication of ways to access the same document.5
If section 14(1) applies to a document, the agency must advise the applicant how the document can be accessed.6 For example, by directing the applicant to the appropriate agency or website from which the applicant may obtain or apply for access.
Documents containing information published on an agency’s website or open to public access: section 14(1)(a)
Section 14(1)(a) applies to documents containing:
- information published on a website owned or maintained by the agency,10 or
- information that is open to public access as part of a public register or similar, or
- information that is published or made open to public access by the agency in another way.
For section 14(1)(a) to apply, it does not matter whether the information is available free of charge or is subject to a fee or other charge.11
Documents falling within section 14(1)(a) cannot be accessed under the Act.
Examples
- Any information published on an agency’s website, such as information about the agency, plans, reports, statistics, education, guidance, notices or news, application forms, consultations, videos, images and photographs.
- Workcover claim files, open to access under section 9 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
- Tribunal or court documents, open to public access under the Tribunal or court’s establishing legislation, regulations, or rules.12
Information must be the same
The information that is ‘published’ or ‘open to public access’ must be the same as the information being requested. If the requested information contained in a document is different in any way to information that is publicly accessible, section 14(1)(a) will not apply.14
Section 14(1)(b) applies to documents containing information available for purchase by the public in accordance with arrangements made by an agency.
Documents falling within section 14(1)(b) cannot be accessed under the Act.
Document ‘available for purchase by the public’
‘Available for purchase by the public’ means the public generally. Section 14(1)(b) does not require that every person can in fact purchase the information.17
Example
In McKechnie v Office of the Chief Parliamentary Counsel [2020] VCAT 506, information was found to be available for purchase by the general public, and fell within section 14(1)(b), even though the applicant’s ability to purchase the information was constrained by his detention and the rules of the prison.
However, the information must be accessible to the public at large, not just to a defined class of people.18
Example
In Towie v Medical Practitioners Board of Victoria [2004] VCAT 2545, section 14(1)(b) did not apply to a transcript of a hearing conducted by a medical panel because it was not shown that anyone other than the parties to the proceeding had a right to purchase the transcript.
‘In accordance with arrangements made by an agency’
‘Arrangements made by an agency’ refers to administrative or other arrangements an agency has in place to manage access to the document. For example, an application process on an agency’s website where a person may apply for access and pay a fee to purchase a copy of a document.
Example of a document falling within section 14(1)(b)
Example
‘AC4’ and Victoria Police (Freedom of Information) [2019] VICmr 22 (18 April 2019)
Background
The applicant requested access to traffic accident reports from the agency.
Decision
The requested traffic accident reports fell within the scope of section 14(1)(b) because:
- the agency provides a service to persons who wish to obtain information about traffic accidents that occur in Victoria and are reported to it;
- the service is available to the public; and
- a person may apply for access by submitting a form and paying the application fee.20
As the documents fell within section 14(1)(b), the applicant could not receive access under the Act.
Section 14(1)(c) applies to documents that are available for public inspection in the Public Record Office of Victoria (PROV).
Documents falling within section 14(1)(c) cannot be accessed under the Act because they are already available for public inspection.
However, section 14(1)(c) does not apply to documents in PROV’s collection that are ‘closed’ or ‘restricted’ records.22
Public Record Office Victoria
PROV is the archive of the State Government of Victoria for public records of permanent value.26
The Public Records Act requires agencies to transfer public records to PROV that are 25 years or older and which are no longer readily required by the agency.27
Digitised public records are available on PROV’s website, and hard copy public records are available to view in PROV’s reading rooms on request.28
Section 14(1)(d) applies to documents stored for preservation or safe custody in PROV that are duplicates of documents in the possession of an agency.
Documents that fall within section 14(1)(d) cannot be accessed under the Act. Instead, a person may apply for access under the Act to the agency who holds the duplicate document. This helps to streamline requests for access to duplicate documents, by ensuring that requests are made to the agency holding the document, not to PROV.
Documents in the custody of the State Library or PROV which are not a document of an agency: sections 14(2) and 14(3)
The purpose of section 14(2) is to ensure that non-agency documents placed in the custody of the State Library of Victoria or PROV can be accessed under the Act, subject to any restrictions or conditions imposed by the person, when the document was placed in the custody of the State Library or PROV.
Section 14(2) only applies to documents that are not documents of an agency.
Example
The Keeper of Public Records considers a document worthy of preservation and purchases the document. They place the document in the custody of PROV for safe keeping, on condition that it must not be copied and may only be inspected behind a glass cabinet.30
The document is not a document of an agency because it was purchased by the Keeper of Public Records. The document is in the custody of PROV.
This means the document falls within section 14(2) and can be accessed under the Act. Access will be subject to the conditions on access imposed by the Keeper of Public Records to not copy the document and only permit inspection behind a glass cabinet.
What if the document was placed in the custody of the State Library of Victoria or PROV before the Act commenced?
Section 14(3) clarifies that section 14(2) applies to documents placed in the custody of the State Library of Victoria or PROV prior to and after the commencement of the Act.
- See Lester v Commonwealth Scientific and Industrial Research Organisation [2014] AATA 646, [22] where the AAT held that the equivalent provision in the Commonwealth FOI Act, section 12, was to ‘exclude those documents that are available via other means’.
- Smeaton v Transport Accident Commission (Review and Regulation) [2017] VCAT 1486, [42].
- Professional Standard 1.2.
- See Lester v Commonwealth Scientific and Industrial Research Organisation [2014] AATA 646, [22] where the AAT held that the equivalent provision in the Commonwealth FOI Act, section 12, was to ‘exclude those documents that are available via other means’.
- Smeaton v Transport Accident Commission (Review and Regulation) [2017] VCAT 1486, [42].
- Professional Standard 1.2.
- This is a new feature of section 14(1)(a), introduced on 11 September 2024 by the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Act 2024 (Vic). Prior to this amendment, section 14(1)(a) only applied to information that was open to public access on payment of a fee or other charge in a public register or otherwise.
- This is a new feature of section 14(1)(a), introduced on 11 September 2024 by the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Act 2024 (Vic). Prior to this amendment, section 14(1)(a) only applied to information that was open to public access on payment of a fee or other charge.
- For example, documents filed in VCAT proceedings are open to public access under section 146(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic): Secretary to the Department of Justice and Community Safety v Rounds [2020] VCAT 649.
- This is a new feature of section 14(1)(a), introduced on 11 September 2024 by the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Act 2024 (Vic). Prior to this amendment, section 14(1)(a) only applied to information that was open to public access on payment of a fee or other charge in a public register or otherwise.
- This is a new feature of section 14(1)(a), introduced on 11 September 2024 by the Justice Legislation Amendment (Integrity, Defamation and Other Matters) Act 2024 (Vic). Prior to this amendment, section 14(1)(a) only applied to information that was open to public access on payment of a fee or other charge.
- For example, documents filed in VCAT proceedings are open to public access under section 146(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic): Secretary to the Department of Justice and Community Safety v Rounds [2020] VCAT 649.
- Re Arnold Bloch Leibler v Department of Planning & Housing (1993) 5 VAR 600.
- Re Arnold Bloch Leibler v Department of Planning & Housing (1993) 5 VAR 600.
- McKechnie v Office of the Chief Parliamentary Counsel [2020] VCAT 506, [27].
- Towie v Medical Practitioners Board of Victoria [2004] VCAT 2545, [28]; McKechnie v Office of the Chief Parliamentary Counsel [2020] VCAT 506, [29].
- McKechnie v Office of the Chief Parliamentary Counsel [2020] VCAT 506, [27].
- Towie v Medical Practitioners Board of Victoria [2004] VCAT 2545, [28]; McKechnie v Office of the Chief Parliamentary Counsel [2020] VCAT 506, [29].
- Victoria Police, Traffic Accident Reports (Web Page, 21 November 2023) https://www.police.vic.gov.au/traffic-accident-reports.
- Victoria Police, Traffic Accident Reports (Web Page, 21 November 2023) https://www.police.vic.gov.au/traffic-accident-reports.
- For further information about closed and restricted records see Public Records Office Victoria, Closed records (Web Page, 21 November 2023) https://prov.vic.gov.au/closed-records.
- For further information about closed and restricted records see Public Records Office Victoria, Closed records (Web Page, 21 November 2023) https://prov.vic.gov.au/closed-records.
- Public Record Office Victoria, About us (Web Page, 21 November 2023) https://prov.vic.gov.au/about-us.
- Public Records Act 1973 (Vic), section 8A.
- Public Records Office Victoria, Where to start? (Web Page, 21 November 2023) https://prov.vic.gov.au/explore-collection/where-start.
- Public Record Office Victoria, About us (Web Page, 21 November 2023) https://prov.vic.gov.au/about-us.
- Public Records Act 1973 (Vic), section 8A.
- Public Records Office Victoria, Where to start? (Web Page, 21 November 2023) https://prov.vic.gov.au/explore-collection/where-start.
- Public Records Act 1973 (Vic), section 15(1).
- Public Records Act 1973 (Vic), section 15(1).
