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Section 23 - Forms of access

Guidelines

Overview of section 23

1.1

Section 23:

  • sets out the methods or ‘forms’ in which an applicant can access a document under the Act;
  • creates a right for an applicant to receive access to a document in the form requested;
  • outlines the exceptions to the right to receive access in the form requested;
  • ensures an applicant does not have to pay higher access charges for access in a different form to the form requested; and
  • sets out special processes for giving access to older documents and documents in the custody of the Public Records Office Victoria (PROV).
1.2

An agency or Minister must provide access to documents in a way that furthers the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information. They must exercise any discretions as far as possible to facilitate and promote the disclosure of information.

Forms of access

1.3

An applicant may receive access to a document by:

  • inspecting the document;
  • receiving a copy of the document;
  • having the document published on a website established by the Minister;
  • arrangements to hear or view sounds or visual images (for example, viewing video footage);
  • receiving a written transcript of sound recorded words, shorthand writing or codified words;
  • special arrangements for health information under the Health Records Act 2001.1
1.4

Access can be given in more than one form.2

Providing a reasonable opportunity to inspect the document – section 23(1)(a)

1.5

An agency or Minister may provide access to a document by providing a reasonable opportunity to inspect it.5 For example, viewing council plans at council’s offices.

1.6

If it would be an infringement of copyright to provide the applicant with a copy of the document, an agency or Minister may instead decide to provide access by inspection.

Documents in the custody of PROV – section 23(5)

1.7

If an agency places a document in PROV’s custody, and the document is not available for public inspection at PROV, the agency or Minister must give access by providing the applicant with a reasonable opportunity to inspect the document on PROV’s premises.7

For more information on documents available for public inspection at PROV, see section 14.

Providing a copy of the document – section 23(1)(b)

1.8

An agency or Minister may provide access to a document by providing a copy of it.9

1.9

The Act is silent as to whether a ‘copy of the document’ includes an electronic copy. Given the Act came into existence in 1982, this is not surprising.10 The Act is also silent as to how a copy of a document may be given to an applicant.11 For example, providing a copy by email, USB, CD, DVD, file sharing platform, facsimile, or hard copy post.

1.10

While the Act does not expressly require an agency or Minister to provide a copy of a document in electronic format or using the method requested by an applicant, it would be consistent with the objects of the Act and Parliament’s intention in sections 23(1) and 23(2), for agencies and Ministers to, as far as is practicable, provide a copy of a document in the format and method requested by an applicant.

Publication to a website established by the Minister – section 23(1)(ba)

1.11

An agency or Minister may provide access to a document by publishing it to a website established by the Minister in accordance with the regulations.15 No regulations have yet been made to enable this form of access to be used.

Arrangements to view or hear sound or visual images – section 23(1)(c)

1.12

An agency or Minister may provide access to a document by arranging for the applicant to hear or view sounds or visual images from articles or things from which sounds or visual images can be reproduced. For example, a voice recorder, CD, or cassette tape with a sound recording stored on it or a CD ROM with video footage stored on it.17

1.13

This form of access is similar to inspecting the document.

Providing a written transcript – section 23(1)(d)

1.14

An agency or Minister may provide access to a document by providing a written transcript of:

  • sound recordings of words;
  • documents containing shorthand writing;
  • documents containing words in codified form.19

Shorthand writing and code

1.15

Shorthand writing is writing associated with the objective of brevity or conciseness in writing.21 This includes the use of acronyms to abbreviate places, names, and turns of phrase.

1.16

Code is the use of symbols, figures or letters, associated with the objective of secrecy or for machine processing of information.22

1.17

Providing written transcripts helps to provide meaning to the document where, because of abbreviated writing or codified information, the information in the document is not meaningful to the reader.23

1.18

This form of access does not require an agency or Minister to create a transcript of illegible or poor handwriting, where the handwriting is not otherwise shorthand or code.24

Health information – section 23(1)(e)

1.19

An agency or Minister may provide access to a document containing health information relating to the applicant in one or more of the forms set out in sections 28(1), (2) or (3) of the Health Records Act 2001.29

1.20

In summary, those forms are:

  • inspecting the health information and having the opportunity to take notes of its contents;
  • receiving a copy of the health information;
  • viewing the health information, and having its content explained by a health service provider.
1.21

The access under sections 28(1), (2) or (3) must be given in way provided in section 29(1) of the Health Records Act 2001, which contains directions for providing access to health information in the way requested by the applicant.

An agency or Minister must give access to a document in the requested form

1.22

An applicant has the right to receive a document in the form that they requested, in most cases.31

1.23

However, there are some exceptions to this right.32 This means, for example, if an applicant requests access to a copy of the document, the agency or Minister must give them a copy, unless an exception applies.

1.24

An applicant may only request access in one of the ‘forms of access’ outlined in section 23(1).33

1.25

If an agency or Minister decides to grant access to a document in a different form, a Tribunal may order the agency or Minister to also grant access in the form requested by the applicant. This is unless the agency or Minister can establish that sections 19 or 25 apply or an exception in section 23(3) applies.34

Exceptions to the requirement to give access in the requested form

1.26

An agency or Minister may refuse to provide access to a document in the form that the applicant requested, and provide access in another form instead, if providing access in the requested form would be:

  • an unreasonable interference with the agency’s operations or the performance of the Minister’s functions;
  • detrimental to the preservation of the document or not appropriate given the physical nature of the document;
  • copyright infringement.39
1.27

The power to refuse access in the requested form is conditional in the sense that it can only be exercised if one of the three exceptions applies.

1.28

The power is discretionary in that an agency or Minister may still decline to exercise the power, even if the agency or Minister is satisfied that an exception applies.40

Unreasonable interference with agency’s operations or performance of Minister’s functions – section 23(3)(a)

1.29

This exception applies if the form of access requested by the applicant:

  • would interfere with the agency’s operations or the performance of the Minister’s functions; and
  • that interference would be unreasonable. 43

Interference

1.30

The interference must be to the agency or Minister that is providing access, not some other agency or Minister.

1.31

The interference could arise from the work involved in providing access, as well as any future consequences of providing access in the form requested by the applicant.45

Unreasonable interference

1.32

The word ‘unreasonably’ requires the agency or Minister to look at the extent and nature of the interference with the operations of the agency or Minister and the extent to which this interference is appropriate having regard to other considerations.

1.33

For example, in Minogue, an important consideration was the importance of ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices.47

1.34

The assessment requires a balancing of interests, by looking at both the ‘disbenefits and benefits’ of providing access in the form requested.48

1.35

In Minogue, VCAT accepted the Department’s submission of a lack of benefit in providing the applicant with the operational instructions of a prison where he was no longer a prisoner, and therefore not likely to be affected by the operational instructions.49

Detrimental to preservation of the document or not appropriate given the physical nature of the document – section 23(3)(b)

1.36

An agency or Minister does not have to provide access to the document in the form that the applicant requested if the requested form of access:

  • would be detrimental to the preservation of the document; or
  • is not appropriate, having regard to the physical nature of the document.53

Not appropriate

1.37

The test of appropriateness involves a judgment about the physical nature of the document. This may refer to the type of document and its size.55 The context of the matter may be considered in deciding if the physical nature of the document renders the form of access not appropriate.56

1.38

The test of appropriateness is not about the:

  • contents of the document – the contents of a document are assessed under Part IV to decide if any exemptions apply. The decision about the form of access arises after the assessment under Part IV is done, and a decision is made to grant access to the document; or
  • circumstances of the applicant.57

Copyright infringement – section 23(3)(c)

1.39

The copyright infringement exception applies if three conditions are satisfied:

  • copyright in the document subsists in a person;
  • the person is a person other than ‘the State’ – meaning, the ‘State of Victoria’;63 and
  • the form of access requested would involve an infringement of copyright.
1.40

An agency will need to look to both the provisions of section 23(3)(c) of the FOI Act and the Copyright Act 1968 (Cth) (Copyright Act) to determine if this exception applies.

1.41

This exception will only apply where an agency or Minister cannot rely on the statutory permission in section 183(1) of the Copyright Act, which permits the State to provide a copy of a document to an applicant under FOI legislation without infringing copyright.

1.42

Therefore, if section 183(1) of the Copyright Act applies, then section 23(3)(c) will not apply, and the agency or Minister must provide access to the document in the form that the applicant requested (unless a different exception applies).

1.43

The statutory permission in section 183(1) of the Copyright Act is discussed further below.

Copyright subsists in a person ‘other than the State’

1.44

The purpose of this exception is to protect the copyright owned by third parties that are not State government departments, agencies or instrumentalities.65 That is, the exception does not protect copyright subsisting in a state government agency, department or instrumentality.

1.45

The person ‘other than the State’ may be a government contractor or sub-contractor, or an estate agent appointed to sell government land.66 In Minogue, VCAT accepted that copyright subsisted in Group 4, which was a sub-contractor that managed the Port Phillip Prison, and that Group 4 was a person other than the State.67

1.46

In the case of a request made to a council, the copyright owner must be a person other than the council.68

Would involve an infringement of copyright

1.47

A copyright infringement will only be established if:

  • there is no statutory permission under the Copyright Act; and
  • the agency or Minister does not have the licence of the copyright owner,73

to provide access in the form requested by the applicant.

Express or implied licence

1.48

‘Licence’ means permission or consent, and the licence can be express or implied.75

1.49

The existence or otherwise of an implied licence must be determined by reference to the contractual relationship between the agency and the copyright owner at the time the document was created, not at a later time when the document is the subject of an FOI request.76 The fact the copyright owner may have refused permission for the agency to provide a copy of the document to an applicant is irrelevant to deciding if there is an implied licence to copy the document.77

1.50

It is a principle of copyright law that where the copyright owner has been engaged for a reward by a party (for example, a government agency) to produce material, the copyright owner grants an implied permission, consent or licence for the government agency to use the material in the manner and for the purpose in which and for which it was contemplated between the copyright owner and the agency, that the material would be used at the time of the engagement.78

1.51

In Minogue, VCAT found that the contractual relationship between the Department and Group 4 implied a permission that the Department may use the operating manual, including making copies, for the purpose of carrying out its powers and fulfilling its duties as a department. Those duties included the Department’s obligations under the FOI Act to provide access to non-exempt documents.79

Statutory permission under the Copyright Act

1.52

The Copyright Act permits the use of a document that would otherwise have been an infringement of copyright. Section 183(1) of the Copyright Act is one of these permissions.

Who is the ‘State’?

1.53

Section 183(1) provides that copyright is not infringed by a State, or a person authorised in writing by a State, doing any of the acts comprised in the copyright if this is done “for the services of the… State”.

1.54

For the purposes of the Copyright Act, departments, unincorporated agencies, and administrative offices are part of the State. Statutory bodies which represent the Crown are part of the State for this purpose also. Additionally, agencies may receive a written authorisation from the Department of Treasury and Finance (DTF) for the purposes of section 183 of the Copyright Act.

1.55

Public hospitals and councils are generally not part of the State for the purposes of section 183 of the Copyright Act. However, some public hospitals have been authorised by DTF.

1.56

If an agency is not sure whether it falls within section 183, it should contact DTF at ippolicy@dtf.vic.gov.au.

When does section 183(1) of the Copyright Act apply?

1.57

In Minogue, VCAT held that the Department copying a document to provide it to a member of the public under the FOI Act was an act done ‘for the services of the State’. VCAT found that FOI legislation serves the purpose of good governance, in that the Act forms an important part of our democratic framework by promoting knowledge about the affairs of government and about governance practices. Providing access to a document under the FOI Act serves the State, because of the State’s legitimate and proper interest in good governance.85

1.58

An agency falling within the meaning of the State in section 183(1) of the Copyright Act is permitted to copy a document and provide the copy to an applicant under the FOI Act. The act of copying the document is done ‘for the services of the State’ and therefore does not infringe copyright.86 This means the agency cannot rely on the exception in section 23(3)(c) of the FOI Act.

1.59

Where an agency is permitted to copy a document and provide the copy to an applicant under the FOI Act, the applicant receiving the copy will still be bound by copyright in the document.

Informing the copyright owner and terms covering the use of the document

1.60

Where an agency is permitted under the Copyright Act to copy a document and provide it to an applicant, the agency must inform the copyright owner that the State has done an act comprised in the copyright.89

1.61

The agency should also inform the applicant in its notice of decision that copyright in the document subsists in a person other than the State, to help prevent the applicant from doing an act that would infringe the copyright (such as making a further copy of the document). Providing access to a copy of a document which is protected by copyright does not authorise the applicant receiving the copy to use the material without a licence.90

1.62

Section 183(5) of the Copyright Act also requires the agency and the copyright owner to agree to terms, including any licence fee, covering the use of the document.

1.63

However, an agency does not have to inform the copyright owner or agree to terms covering the use of the document if section 183A of the Copyright Act applies.91

1.64

Section 183A relates to special arrangements for copying for services of government. In Victoria, departments and some agencies participate in an agreement with the Copyright Agency. Under that agreement, the requirements under section 183(4) and section 183(5) of the Copyright Act are waived for government copies of works other than survey plans and computer programs.

Producing a written document before providing access – section 19

1.65

Section 19 requires an agency or Minister to produce a written document, where the information requested by an applicant is not already available in a discrete document of the agency or Minister.

1.66

This may affect an applicant’s ability to receive access in the form of viewing or inspecting electronic information, where that information is not yet in documentary form.

Removing exempt or irrelevant information from a document before providing access – section 25

1.67

Section 25 allows an agency or Minister to remove irrelevant and exempt information from a document before providing access under the Act. Section 25 qualifies the form of access because the edited document is not a true copy of the document requested by the applicant.

Facilitating access at the lowest reasonable cost – section 23(4)

1.68

Where an agency or Minister provides access to a document in a different form to what an applicant requested, an agency or Minister cannot impose an access charge that is greater than the charge that would apply to provide access in the form requested by the applicant.

1.69

This means that if access is given in a form that attracts higher access charges than the form requested, the agency or Minister must only charge using the rates for access in the requested form.

For more information on access charges, see section 22 – Charges for access.

1.70

This only applies where an applicant has requested access in a particular form. Where an applicant does not request a specific form of access, and access could be provided in more than one form, regulation 7 of the Freedom of Information (Access Charges) Regulations 2014 requires agencies and Ministers to only charge for access in the form that would be the lowest reasonable cost.

Documents more than 20 years old or in the custody of PROV – sections 23(6)-(7)

1.71

Section 23(6) deals with:

  • a document which is more than 20 years old; or
  • a document which is in the custody of PROV.
1.72

The Keeper of Public Records may determine that providing access a document that is more than 20 years old, or a document which is in PROV’s custody, in one or more (but not all) of the forms of access in section 23(1) would be:

  • detrimental to the preservation of the document; or
  • would not be appropriate, having regard to the physical nature of the document.95
1.73

The determination must allow an agency or Minister to give access in at least one of the forms in section 23(1). A determination by the Keeper of Public Records cannot rule out all forms of access.

1.74

If the Keeper of Public Records makes a determination under section 23(6), the agency or Minister must not give access in the form or forms specified in the determination, but may give access in any of the remaining forms in section 23(1).96

  1. Freedom of Information Act 1982 (Vic), sections 23(1)(a)-(e).
  2. For example, section 23(1) states that access to a document may be given to a person in ‘one or more’ of the prescribed forms.
  3. Freedom of Information Act 1982 (Vic), sections 23(1)(a)-(e).
  4. For example, section 23(1) states that access to a document may be given to a person in ‘one or more’ of the prescribed forms.
  5. Freedom of Information Act 1982 (Vic), section 23(1)(a).
  6. Freedom of Information Act 1982 (Vic), section 23(1)(a).
  7. Freedom of Information Act 1982 (Vic), section 23(5).
  8. Freedom of Information Act 1982 (Vic), section 23(5).
  9. Freedom of Information Act 1982 (Vic), section 23(1)(b).
  10. AB3 and Department of Justice and Community Safety [2019] VICmr 12, [10].
  11. AB3 and Department of Justice and Community Safety [2019] VICmr 12, [10].
  12. Freedom of Information Act 1982 (Vic), section 23(1)(b).
  13. AB3 and Department of Justice and Community Safety [2019] VICmr 12, [10].
  14. AB3 and Department of Justice and Community Safety [2019] VICmr 12, [10].
  15. Freedom of Information Act 1982 (Vic), section 23(1)(ba). Section 23(1)(ba) was inserted by section 8 of the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012.
  16. Freedom of Information Act 1982 (Vic), section 23(1)(ba). Section 23(1)(ba) was inserted by section 8 of the Freedom of Information Amendment (Freedom of Information Commissioner) Act 2012.
  17. Freedom of Information Act 1982 (Vic), section 23(1)(c).
  18. Freedom of Information Act 1982 (Vic), section 23(1)(c).
  19. Freedom of Information Act 1982 (Vic), section 23(1)(d).
  20. Freedom of Information Act 1982 (Vic), section 23(1)(d).
  21. MacDonald v Austin Hospital (1991) 5 VAR 67, 69.
  22. MacDonald v Austin Hospital (1991) 5 VAR 67, 69-70.
  23. MacDonald v Austin Hospital (1991) 5 VAR 67, 70.
  24. MacDonald v Austin Hospital (1991) 5 VAR 67, 70.
  25. MacDonald v Austin Hospital (1991) 5 VAR 67, 69.
  26. MacDonald v Austin Hospital (1991) 5 VAR 67, 69-70.
  27. MacDonald v Austin Hospital (1991) 5 VAR 67, 70.
  28. MacDonald v Austin Hospital (1991) 5 VAR 67, 70.
  29. Freedom of Information Act 1982 (Vic), section 23(1)(e).
  30. Freedom of Information Act 1982 (Vic), section 23(1)(e).
  31. Freedom of Information Act 1982 (Vic), section 23(2); Minogue v Department of Justice [2004] VCAT 1194, [15].
  32. These exceptions are in sections 19, 23(3), and 25. Minogue v Department of Justice [2004] VCAT 1194, [15].
  33. MacDonald v Austin Hospital (1991) 5 VAR 67.
  34. Williams v Victoria Police [2005] VCAT 2516, [67]–[68].
  35. Freedom of Information Act 1982 (Vic), section 23(2); Minogue v Department of Justice [2004] VCAT 1194, [15].
  36. These exceptions are in sections 19, 23(3), and 25. Minogue v Department of Justice [2004] VCAT 1194, [15].
  37. MacDonald v Austin Hospital (1991) 5 VAR 67.
  38. Williams v Victoria Police [2005] VCAT 2516, [67]–[68].
  39. Freedom of Information Act 1982 (Vic), section 23(3).
  40. Minogue v Department of Justice [2004] VCAT 1194, [19].
  41. Freedom of Information Act 1982 (Vic), section 23(3).
  42. Minogue v Department of Justice [2004] VCAT 1194, [19].
  43. Minogue v Department of Justice [2004] VCAT 1194, [55].
  44. Minogue v Department of Justice [2004] VCAT 1194, [55].
  45. Minogue v Department of Justice [2004] VCAT 1194, [56].
  46. Minogue v Department of Justice [2004] VCAT 1194, [56].
  47. Minogue v Department of Justice [2004] VCAT 1194, [57].
  48. Minogue v Department of Justice [2004] VCAT 1194, [57].
  49. Minogue v Department of Justice [2004] VCAT 1194, [58].
  50. Minogue v Department of Justice [2004] VCAT 1194, [57].
  51. Minogue v Department of Justice [2004] VCAT 1194, [57].
  52. Minogue v Department of Justice [2004] VCAT 1194, [58].
  53. Freedom of Information Act 1982 (Vic), section 23(3)(b).
  54. Freedom of Information Act 1982 (Vic), section 23(3)(b).
  55. Minogue v Department of Justice [2004] VCAT 1194, [71].
  56. Minogue v Department of Justice [2004] VCAT 1194, [74].
  57. Minogue v Department of Justice [2004] VCAT 1194, [70].
  58. Minogue v Department of Justice [2004] VCAT 1194, [75].
  59. Minogue v Department of Justice [2004] VCAT 1194, [71].
  60. Minogue v Department of Justice [2004] VCAT 1194, [74].
  61. Minogue v Department of Justice [2004] VCAT 1194, [70].
  62. Minogue v Department of Justice [2004] VCAT 1194, [75].
  63. Interpretation of Legislation Act 1984 (Vic), section 38.
  64. Interpretation of Legislation Act 1984 (Vic), section 38.
  65. Minogue v Department of Justice [2004] VCAT 1194, [31].
  66. Minogue v Department of Justice [2004] VCAT 1194, [32].
  67. Minogue v Department of Justice [2004] VCAT 1194, [32].
  68. Freedom of Information Act 1982 (Vic), section 23(3)(c).
  69. Minogue v Department of Justice [2004] VCAT 1194, [31].
  70. Minogue v Department of Justice [2004] VCAT 1194, [32].
  71. Minogue v Department of Justice [2004] VCAT 1194, [32].
  72. Freedom of Information Act 1982 (Vic), section 23(3)(c).
  73. See Copyright Act 1968 (Cth) section 36(1).
  74. See Copyright Act 1968 (Cth) section 36(1).
  75. See Minogue v Department of Justice [2004] VCAT 1194, [33].
  76. Minogue v Department of Justice [2004] VCAT 1194, [36].
  77. Minogue v Department of Justice [2004] VCAT 1194, [36].
  78. Beck v Montana Constructions Pty Ltd (1963) 80 WN (NSW) 1578, relied on by President Morris J, in Minogue v Department of Justice [2004] VCAT 1194, [37-38].
  79. Minogue v Department of Justice [2004] VCAT 1194, [41-42].
  80. See Minogue v Department of Justice [2004] VCAT 1194, [33].
  81. Minogue v Department of Justice [2004] VCAT 1194, [36].
  82. Minogue v Department of Justice [2004] VCAT 1194, [36].
  83. Beck v Montana Constructions Pty Ltd (1963) 80 WN (NSW) 1578, relied on by President Morris J, in Minogue v Department of Justice [2004] VCAT 1194, [37-38].
  84. Minogue v Department of Justice [2004] VCAT 1194, [41-42].
  85. Minogue v Department of Justice [2004] VCAT 1194, [47].
  86. Minogue v Department of Justice [2004] VCAT 1194, [51].
  87. Minogue v Department of Justice [2004] VCAT 1194, [47].
  88. Minogue v Department of Justice [2004] VCAT 1194, [51].
  89. Copyright Act 1968 (Cth), section 183(4).
  90. Department of Treasury and Finance, Intellectual Property Guidelines for the Victorian Public Sector, [11.4.4].
  91. In accordance with sections 184(4) and 183(5) of the Copyright Act respectively.
  92. Copyright Act 1968 (Cth), section 183(4).
  93. Department of Treasury and Finance, Intellectual Property Guidelines for the Victorian Public Sector, [11.4.4].
  94. In accordance with sections 184(4) and 183(5) of the Copyright Act respectively.
  95. Freedom of Information Act 1982 (Vic), section 23(6).
  96. Freedom of Information Act 1982 (Vic), section 23(7).
  97. Freedom of Information Act 1982 (Vic), section 23(6).
  98. Freedom of Information Act 1982 (Vic), section 23(7).

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Last updated 27 December 2023

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