Section 11 - Statement of certain documents in possession of agencies to be published

Under section 11, an agency must publicly list reports, advice, records of decisions, valuations, scientific research, and submissions prepared by or for the agency.²At a minimum, these documents should be listed by title, but may also list other useful descriptors such as topic and date.

Local councils are excluded from compliance with section 11. Whilst section 11 does not apply to councils, all councils are still under the obligation in section 7 to provide a statement of the general categories of documents that are maintained in the possession of the council.⁴ Additionally, councils are required to maintain a ‘Public Transparency Policy’ under the Local Government Act 2020 (Vic).

While these documents are required to be listed, unlike section 8, they are not required to be made available for inspection or purchase. Section 11 enables an individual to make a request for a listed document – whether under section 17 or via other methods.

Where a request is received for a listed document, and the document is released in full, or in part, an agency is encouraged to publish the document on its website. This can reduce future requests for the same information and furthers the object of the Act to extend as far as possible the right of the community to access government held information.

An agency is not required to list a document where listing the document would reveal exempt matter.⁶

Section 11(2)(a) requires a statement to be published ‘in the prescribed form’ detailing the documents captured by section 11. While there is no prescribed form for section 11, an agency is nevertheless obligated to implement this requirement.

As no form has been prescribed, there is no specific obligation to list information in one location or under specified headings – for example, the traditional ‘Statement X’. This allows for flexibility in implementing and publishing the required information.

A practical approach to interpreting and implementing the requirements of section 11 should be taken. Section 11 has not undergone any significant reform since it was first enacted, and its requirements are not directly compatible with the way modern government operates.

Nonetheless, an agency should aim to comply with the requirements, purpose, and intent of section 11, 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 current technology such as websites and online databases.

Relevant documents may be listed on a webpage or multiple logical webpages. 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 11(1)(a) requires an agency to list any document that is a report, or a statement containing the advice or recommendations, of a prescribed body or organisation established within the agency.

To date, no body or organisation has been prescribed for the purposes of this section. Therefore, no report or statement relating to this category is required to be listed.

Section 11(1)(b) requires an agency to list any document that is a report, or a statement:

• prepared by:
  • a body or organisation established outside the agency by or under an Act; or
  • a body or organisation established outside the agency by the Governor in Council or a Minister; and
• it contains advice or recommendation to the agency or the responsible Minister of the agency.

Section 11(1)(c) requires an agency to list any document that is a report, or a statement:

• containing advice or recommendations; and
• it was prepared by an interdepartmental committee; and
• the interdepartmental committee includes an officer of the agency.

Section 11(1)(d) requires an agency to list any document that is a report, or a statement:

• prepared within the agency by a committee; and
• the committee was established to submit a report, provide advice, or make recommendations; and
• the report, advice or recommendations is directed at:
  • the responsible Minister of the agency; or
  • another officer of the agency not on the committee.

Section 11(1)(e) requires an agency to list any document that is a report, or a statement prepared for the agency by a scientific or technical expert, whether employed within the agency or not.

It does not matter whether the expert is employed within the agency or not.

The report might relate to the results of scientific studies, surveys, or tests, but could relate to any other matter.

The report might express the opinions of the expert on scientific or technical matters.

Section 11(1)(f) requires an agency to list any document that is a report prepared for the agency by a consultant who was paid for preparing the report.

Section 11(1)(g) requires an agency to list any document that is a report:

• prepared within the agency; and
• it contains the results of studies, surveys, or tests; and
• the studies, surveys or tests have been carried out for the purpose of assessing or making recommendations on establishing a new or proposed government policy, program, or project.

Section 11(1)(h) requires an agency to list any document that is a report:

• prepared by an agency officer or someone engaged by the agency; and
• it relates to the performance or efficiency of the agency, an office, division, or branch.

Section 11(1)(i) requires an agency to list any document that is a report:

• containing final plans or proposals on any of the following matters:
  • the re-organisation of the functions of the agency;
  • the establishment of a new policy, program or project administered by the agency; or
  • the alteration of an existing policy, program or project administered by the agency.

It does not matter whether the plans or proposals are subject to final approval by an officer of the agency, another agency, the responsible Minister of the agency, or the Cabinet.

Section 11(1)(j) requires an agency to list any document that is a statement:

• prepared within the agency; and
• it contains instructions for the drafting of a Bill; and
• it was submitted to the Parliamentary Counsel.

Section 11(1)(k) requires an agency to list any document that is a submission prepared within the agency for presentation to the Cabinet.

It does not capture submissions prepared by the responsible Minister of the agency.

Section 11(1)(l) requires an agency to list any document that is a report:

• prepared within the agency; and
• it relates to a test carried out on a product for the purpose of purchasing the product.

The term ‘test’ encompasses assessments, evaluations etc.

Section 11(1)(m) requires an agency to list any document that is an environmental impact statement prepared within the agency.

Section 11(1)(n) requires an agency to list any document that is a valuation report prepared for the agency by a valuer.

An agency is required to review its compliance with section 11 at least once every twelve months.⁸ An agency should take the most practical and efficient approach to keeping this information up to date.