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 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 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 apply for access.
Section 14(1)(a) applies to documents that contain information open to public access as part of a public register or otherwise, in accordance with other legislation, where that access is subject to a fee or other charge.
Documents falling within section 14(1)(a) cannot be accessed under the Act.
Elements
A document falls within section 14(1)(a) if three elements are met:
- the information in the document must be open to public access as part of a public register or in another way;
- there must be an enactment other than the FOI Act that governs how a person may access that information;8
- access to the information must be subject to a fee or other charge (for example, an application or access fee).
Information must be the same
The information that is ‘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.10
Example of a document falling with section 14(1)(a)
Example
Secretary to the Department of Justice and Community Safety v Rounds [2020] VCAT 649
Background
The applicant made a request to the agency for various documents relating to the handling of complaints by Consumer Affairs Victoria. Some of the documents falling within the request related to VCAT proceedings.
Under section 146(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) a party may obtain a copy of any part of a VCAT proceeding file on payment of the prescribed fee. The prescribed fee under rule 13(b) of the Victorian Civil and Administrative Tribunal (Fees) Regulations 2016 (Vic) (VCAT Regulations) is 60 cents per page.
Decision
Documents in VCAT proceeding files fall within the scope of section 14(1)(a) because:
- they are open to public access;
- under other legislation, being the VCAT Act and VCAT Regulations;
- upon payment of the prescribed fee, as specified in rule 13(b) of the Regulations.
As the documents fell within section 14(1)(a), they could not be accessed under the FOI Act.
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.13
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.14
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.16
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.18
Public Record Office Victoria
PROV is the archive of the State Government of Victoria for public records of permanent value.22
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.23
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.24
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.26
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.
- ‘Enactment’ is defined in section 5(1) as “an Act or an instrument (including rules, regulations, local laws or by-law) made under an Act”. ‘Act’ means legislation passed by the Parliament of Victoria, not another State, Territory or Commonwealth Act. Interpretation of Legislation Act 1984 (Vic), section 38.
- ‘Enactment’ is defined in section 5(1) as “an Act or an instrument (including rules, regulations, local laws or by-law) made under an Act”. ‘Act’ means legislation passed by the Parliament of Victoria, not another State, Territory or Commonwealth Act. Interpretation of Legislation Act 1984 (Vic), section 38.
- 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).
