Section 13 - Right of access

Any person has a legally enforceable right to seek access to documents of Victorian government agencies and official documents of Victorian Government Ministers.⁴ However, the right of access is not absolute and is subject to other provisions in the Act. For example, the right of access does not apply to an exempt document.⁵

Read together with section 16 and the Act’s object in section 3, section 13 gives every person a ‘broad and ready right of access’,⁶ that is limited only by exceptions and exemptions in the Act that are necessary for the protection of essential public interests, or the protection of a person’s private and business affairs.

The right of access ‘in accordance with this Act’ means the right is only enlivened and enforceable if the procedures in the Act are followed.¹¹ The Act sets out when the right of access is enlivened and what steps must be satisfied before access to a document is granted.

For example, the right of access is only enlivened when a valid request for access is made under section 17.¹² ‘Valid’ means the request meets the requirements in section 17.

Similarly, an agency or Minister may require an applicant to pay access charges before access may be given.¹³ The applicant must pay these charges before access is provided.¹⁴

The phrase ‘subject to this Act’ refers to the exceptions and exemptions in the Act that allow agencies and Ministers to refuse access to documents in certain instances. For example, a document may not be subject to the Act because of section 14 (where the document is published on the agency’s website or accessible in a public register or other open access arrangement), or it may be an exempt document under Part IV.¹⁶

Every person may make an FOI request. ‘Person’ means an individual, a body politic or corporate.²⁰ This means an organisation or company can make a request, in addition to individuals.

The right is granted to every person, singular, not persons, plural. This means the right of access cannot be exercised jointly by two or more persons.²¹ For example, a partnership cannot exercise the right of access under the Act, because it is not an individual, body politic or corporate.²²

An adult or a child may make a request. However, the person making the request must have sufficient capacity to understand the nature and significance of making a request, and wish to make the request.²⁴

While an agency can make a request to another agency for documents in the other agency’s possession,²⁸ the request must be made by a ‘person’ on behalf of the agency for the right of access to be enlivened.²⁹

A Council is a ‘person’ because it is a body corporate under section 14(1) of the Local Government Act. Councils can therefore make requests for access under the Act.³⁰

A person does not need to give reasons for or explain why they would like access to a document to have the right to make a request under the Act.³⁴ A person’s right to make a request applies regardless of their interest in, or motivation for, seeking access to a document.³⁵

However, a person’s reasons for seeking access to a document may become relevant later in the FOI process. For example:

• if the intended use of the document is a use of general public interest or benefit, this may be relevant to deciding whether to waive access charges under section 22;³⁶
• when deciding whether release of personal information about a person other than the applicant would be reasonable in the circumstances; or
• an applicant’s intended use of the document may assist an agency or Minister to determine whether access can be provided informally outside of the Act under section 16.

The right of access is to a document. ‘Document’ is defined broadly in section 5(1) to include any distinct record of information in any form and however stored, whether in physical, electronic or digital form.⁴²

The right does not include access to information.⁴³ A document is different to information.

There may be situations where section 19 requires an agency or Minister to create a document containing the requested information, to satisfy a request. For example, extracting information from a database and producing a document containing the information.

The right of access does not apply to an exempt document or a document that is excluded from the operation of the Act.⁴⁴ If an agency or Minister decides that a document is exempt or is excluded under the Act, they may refuse access to it. If this happens, the person making the request will receive review and complaint rights in relation to the request.⁴⁵

Even if an agency or Minister considers a document is exempt, the Act does not say agencies or Ministers cannot disclose exempt documents.⁴⁶ An agency or Minister has a discretion to release an exempt document under section 16.

There are some instances where a document may be excluded from the operation of the Act, meaning access cannot be provided under the Act. For example, this includes:

• documents in the possession of OVIC relating to FOI reviews, FOI complaints, and investigations (section 6AA);
• documents that are available to the public on the agency’s website, or under other access arrangements (section 14); and
• where another law excludes a document from the operation Act (see ‘How does the right of access in the Act interact with other State and Commonwealth laws?’ below for more information).

Another law may exclude a document from the operation of the Act, meaning an agency or Minister cannot provide access to that document under the Act.

If an agency or Minister decides a document is excluded under the Act, the agency or Minister may refuse access to it. If this happens, the person making the request will receive review and complaint rights in relation to the request.

Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), agencies and officers performing functions and making decisions under the FOI Act need to act compatibly with each of the human rights in the Charter and consider those rights when making a decision, unless the limitation of the right is necessary and reasonable.

The Charter requires that legislation is to be interpreted, as far as it is possible to do so, in a way that is compatible with human rights.⁵³

Where the words of a statutory provision are capable of more than one meaning, courts and tribunals must give the words of the statute the meaning which best aligns with relevant human rights as far as it is possible to do so consistently with the purpose of the statutory provision.⁵⁴ Notwithstanding this, section 32(1) of the Charter does not affect an Act or provision of an Act that is incompatible with a human right.⁵⁵

The right to freedom of expression in section 15(2) of the Charter, in particular the right to seek and receive information and ideas, includes a positive right to access information held by the government.⁵⁶

The Act should be interpreted, so far as is consistent with its purpose, in a way that is compatible with human rights.

The right of access does not apply to information in a document that a Commonwealth law prohibits from being disclosed. Generally, this arises where a Commonwealth law has a secrecy or confidentiality provision that applies to the information.

This is based on section 109 of the Commonwealth Constitution, which provides that a Commonwealth law prevails where there is an inconsistency between a State law or a Commonwealth law.