Section 19 - Requests involving use of computers etc.

The purpose of section 19 is to enable access to information that is not available in discrete form in documents of the agency or Minister. In this circumstance, section 19 requires the agency or Minister to produce a written document containing the requested information, by:

• the use of a computer or other equipment that is ordinarily available to the agency or Minister for retrieving or collating stored information; or
• the making of a transcript from a sound recording held by the agency or Minister.

A document produced under section 19 is taken to be a document in the agency or Minister’s possession at the time the request for access was made and is to be processed under the Act in the normal way. For example, an exemption from access in Part IV may apply to a document produced under section 19.

An agency may have to create a document under section 19 where the information requested by an applicant does not exist in a discrete form (for example, statistical data from a case management system), but the agency can create a document containing that information.⁴ The same will apply where the agency can make a transcript for a sound recording it holds.

Section 19 does not apply to distinct electronic records (such as emails, Word, PDF or Excel files) that already exist at the time a request is made to an agency.⁵

The Supreme Court of Victoria in Monash University v EBT [2022] VSC 651 made it clear that:

• the definition of ‘document’ in section 5 of the Act includes a record of information stored electronically; and
• it would be contrary to the text, context and purpose of the Act to apply section 19 to electronically stored documents (e.g., emails).⁶

For section 19 to apply, it must appear from the request that the desire of the applicant is for information that is not available in discrete form in documents of the agency or official documents of the Minister.⁸

‘Document of the agency’ is defined as ‘a document in the possession of an agency, or in the possession of the agency concerned, as the case requires, whether created in the agency or received in the agency’.

Possession may be physical possession or constructive possession. Constructive possession is where an agency has the right to call for the document and to control the document, such as a document in the physical possession of a contractor.¹⁰

The word ‘discrete’ in the context of a document requested under the Act means ‘single, distinct or particular’,¹⁶ ‘separate, individually distinct, discontinuous’.¹⁷

Information may not be available in discrete form where:

• the information exists, but is not stored in a single record (for example, if a database must be interrogated to extract the information);¹⁸ or
• the information is no longer available because the agency does not have the technology to retrieve it (for example old emails backed up on magnetic tape that cannot be accessed unless the information is converted to disc format).¹⁹

Electronic documents (such as emails, Word, PDF and Excel files), that exist at the time a request is made, are ‘documents’ for the purposes of section 5.²⁰ Consequently, ordinary access provisions under the Act apply rather than section 19.

Section 19 will only operate where the agency or Minister can produce a written document from information that is in its physical possession or control.

In Proudfoot v Victoria University, VCAT posed the question as, ‘whether the University can, by accessing its existing data, create a document which can retrieve and collate the various pieces of data to respond to the request’.²³

VCAT found that section 19 did not require the University to retrieve and collate ATAR data from an external body, the Victorian Tertiary Admissions Centre, to produce a written document, in circumstances where the University did not hold or have the ATAR data in its possession or control.²⁴

An agency or Minister can produce one or more documents under section 19 containing the information sought in a request. There is nothing in the Act to suggest that only one written document must be produced containing all of the information sought in a request.²⁸ For example, if a request identifies two categories of information, the agency or Minister can produce two documents under section 19 in response to each category of information.²⁹

A written document produced under section 19 does not have to be hard copy document. An electronic document is a written document for the purposes of section 19.³⁰

The document or documents produced under section 19 do not have to contain all of the information sought in the applicant’s request.³²

Under section 19(1)(c) there are two ways an agency or Minister can ‘produce a written document containing the information in discrete form’. The first way is to use a computer or other equipment that is ordinarily available to the agency or Minister for retrieving or collating stored information.

• Computer or other equipment may be considered ‘ordinarily available’ to the agency or Minister for retrieving or collating stored information:
• where an existing program could be easily modified to retrieve or collate the information sought in the request;³⁹
• where the agency or Minister routinely commissions or retains staff to produce new computer programs to retrieve or collate information of a kind sought in the request. That is, where the agency or Minister can readily write new programs of the kind required, as an ordinary part of its ordinary use of its existing computer hardware and software;⁴⁰ or
• where the agency or Minister is required to retrieve data from backup tapes, even in circumstances where the tapes use an old technology and can be accessed only by an external IT provider.⁴¹

Other examples where VCAT found equipment was ordinarily available and section 19 applied, include:

• retrieving and collating data from backup tapes;⁴²
• taking ‘screen prints’ showing lists of documents contained in electronic folders on a computer in possession of an agency;⁴³ and
• taking ‘screen prints’ of an agency’s search results.⁴⁴

Computer or other equipment may not be considered ‘ordinarily available’ to the agency or Minister for retrieving or collating stored information where the agency or Minister’s functional computer system (comprising hardware and software) could not produce the requested document unless:

• new software was obtained; or
• a new program directed at retrieving or collating the specific information sought in the request was written.⁴⁶

Under section 19(1)(c) there are two ways an agency or Minister can ‘produce a written document containing the information in discrete form’. The second way is to make a transcript from a sound recording held by the agency or Minister.

There are unlikely to be many situations where this subsection will apply, given that section 23(1)(d) enables an agency or Minister to provide access to a sound recording in the form of a written transcript, without the need for the written transcript to be considered a document produced under section 19.

However, there may be a situation where it appears from the request that the desire of the applicant is for disparate information contained across multiple sound recordings. In this scenario, the information is not available in discrete form in documents of the agency or Minister, but the agency or Minister could produce a written document by making a transcript of the requested information from the sound recordings.