Section 20 - Access to documents to be given on request

The purpose of section 20 is to ensure that an applicant is granted access to a document under the Act where:

• the request is valid under section 17;
• the document is a document of the agency or an official document of the Minister;
• any charge that is required to be paid by the applicant under the regulations has been paid; and
• no exceptions (for example, section 14) or exemptions in Part IV apply to the document.

Section 20 also makes it clear that the Act does not require an agency or Minister to grant access to a document at a time when one or more exemptions in Part IV apply to the document.

The phrase ‘subject to this Act’ refers to the exceptions and exemptions in the Act that permit agencies and Ministers to refuse access to documents in specified circumstances. For example, a document may fall outside of the Act due to the operation of section 14, or the document may be exempt from access under Part IV.

‘Duly made’ means the request complies with the requirements in section 17 and is therefore a valid request made under the Act.

See the FOI Guidelines on section 13, which provides guidance on what a ‘person’ means.

The requirement in section 20(1)(b) refers to the payment of ‘access charges’ under section 22 and the Freedom of Information (Access Charges) Regulations 2014.

Any access charges payable under the regulations must be paid by the applicant before an agency or Minister has to grant access to the document.

The obligation under section 20 to provide ‘access to the document’ only extends to providing access to parts of the document that fall within the terms of the request.³

If a document contains information that is irrelevant to a request, the agency or Minister does not have to provide access to the irrelevant information. Section 20 allows irrelevant information to be removed or redacted from a document before releasing the relevant parts to an applicant.

The Victorian Civil and Administrative Tribunal (VCAT) endorsed the following submission made by the agency in Wilson v Department of Premier and Cabinet (No 2):

If a document relates to subject matters A, B and C, and the applicant’s request is for documents relating to subject matter A, those parts of the document that relate to B and C are not ‘the document’ requested by the applicant. The intention of the Applicant is to obtain access only to information relating to subject matter A. It would require a strained, even contrived, construction of a request for documents relating to subject matter A to read it as extending to the whole of any document in which A was raised, however tangentially, including those parts that relate only to B and C.⁴

An agency or Minister does not have to grant access to a document at a time when one or more exemptions in Part IV apply to the document.⁷

The exemptions that may apply to a document are those in Part IV that were in force on the date a valid request is made under section 17. This is because the rights and liabilities of the applicant, agency and Minister are fixed at the date the request becomes valid.⁸

If, for example, a new exemption provision is inserted into Part IV after the date the request became valid, the new exemption provision cannot be applied to refuse access to the document. Instead, the agency or Minister must apply the exemption provisions in Part IV in force as at the date the request became valid. If no exemptions or exceptions apply, the agency or Minister should grant access to the document.

In contrast, laws that are imported into the Act may be applied as at the date of the decision. For example, if a secrecy provision contained in other legislation is inserted or amended after the date the request became valid, and the secrecy provision applies to the information in the document, the agency or Minister should rely on the secrecy provision in that other legislation at the date of the decision, not the date of the application, in conjunction with section 38, to refuse access to the document.