Section 16 - Access to documents apart from Act

Section 16 facilitates the proactive and informal release of information to the public by encouraging and permitting agencies and Ministers to provide access to as much information as possible, even if that information is exempt from release under the Act. It encourages agencies to provide the public with anything which it may legitimately provide.⁴

The effect of this section, in combination with sections 3 and 13, is to provide the public with a broad and ready right of access to information.⁵ This broad right of access is subject to the requirements in section 17 in making a valid request.⁶

However, section 17 does not apply to documents provided by an agency or Minister to an applicant outside the Act. This means a request does not have to meet the requirements in section 17 for the agency or Minister to provide access to documents outside of the Act.

An agency or Minister must administer the Act from a pro-disclosure standpoint.

An agency or Minister must administer the Act with a view to making the maximum amount of government information promptly and inexpensively available.⁹ That is, to extend as far as possible the right of the community to access information in the possession of government.¹⁰

This reinforces Parliament’s intention in section 3(2) to interpret the Act to further its object and to exercise discretions in a way that facilitates access to information.

Section 16(2) facilitates proactive and informal release of information by outlining that nothing in the Act is intended to prevent or discourage an agency or Minister from publishing or giving access to documents outside the Act where they can properly do so or are required by law to do so.¹³

Section 16(2) makes it clear that the Act is not an “exhaustive code for dissemination of government information”.¹⁴ Agencies and Ministers can, and do, release information and documents outside of the Act.

Proactive release involves an agency or Minister making information publicly available, without an individual first making a request for it. This may involve an agency publishing certain information, reports, submissions, or other documents on its website.

Many agencies and Ministers proactively release information, whether that is publishing information about its organisational structure, a project, or a report about a particular matter relevant to the agency or its functions.

Proactive release is consistent with an agency or Minister’s obligations under section 16 to make the maximum amount of government information available to the public promptly and inexpensively.

Proactive release promotes government transparency and accountability by increasing the public’s access to government information and ability to participate in a more informed way in government decision making.

In addition to promoting open and accountable government, the proactive release of information reduces the need for formal FOI requests if the information sought is already publicly available.

Proactive release can improve public trust in government by providing more information about agencies and Ministers, what they do, and how they operate.

Informal release involves an agency or Minister receiving a request for information or a document and providing access to the relevant information or document outside of the Act.

Information can be informally released in response to a once off request for information, or under more structured information release schemes or policies. Informal release is also commonly referred to as administrative release, and in contrast to proactive release, is a reactive way to provide access to information.

Informal release may involve an agency or Minister providing access to a copy of a requested document without processing the request under the Act. It may also involve an agency or Minister communicating requested information over the telephone in response to an enquiry.

In some cases, an agency may decide to set up an information release scheme where it identifies a significant number of requests for a particular type of information. For example, Victoria Police provides a service to persons wishing to access information about property loss or damage that occurred in Victoria and was reported to Victoria Police.¹⁶ Individuals can apply to obtain the relevant crime report without making an FOI request.

Informal release is a simpler and more efficient process than responding to a formal request under the Act. It provides agencies and Ministers with flexibility in how they deal with requests for government information and fulfils the object of the Act to make information available promptly and inexpensively.

Section 16(2) empowers an agency or Minister to publish or provide access to an exempt document, where they can properly do so or are required by law to do so.

The meaning of the word ‘properly’ is not defined in the Act. The word should be given its ordinary English meaning.²² The Macquarie Dictionary defines ‘properly’ as ‘in a proper manner; correctly; appropriately; justifiably’.²³

To ‘properly’ release a document, an agency or Minister should consider:

• relevant enabling legislation – this may explain when the agency or Minister can release information, and where releasing information is prohibited or restricted by a secrecy provision;²⁴
• the Information Privacy Principles under the Privacy and Data Protection Act when releasing personal information; and
• any court orders that restrict release.

It may not be proper to release information which the objects clause of the Act singles out for special protection from disclosure.²⁵ These special exemptions identified in section 3, are for documents affecting personal privacy (section 33) and commercially sensitive documents (section 34).

It would not be proper to provide access to an exempt document where to do so would be defamatory or a breach of confidence.²⁶