Section 24 - Deferment of access
Extract of legislation
| 24 | Deferment of access | ||
| (1) | An agency which, or a Minister who, receives a request may defer the provision of access to the document concerned if the document has been prepared— | ||
| (a) | for presentation to the Parliament; | ||
| (aa) | for presentation to a council; | ||
| (b) | for release to the Press; or | ||
| (c) | solely for inclusion, in the same or in an amended form, in a document to be prepared for a purpose specified in paragraph (a), (aa) or (b)— | ||
| and the document is yet to be presented or released, or included in a document to be presented or released, as the case may be. | |||
| (2) | Where the provision of access to a document is deferred in accordance with subsection (1), the agency or Minister shall, in informing the applicant of the reasons for the decision, indicate, as far as practicable, the period for which the deferment will operate. | ||
An agency or Minister may defer (delay) access to a requested document in certain circumstances.
This reflects the public interest in presenting information to Parliament, council and the press, and the balancing of this public interest with the general right of access to government held information under the Act.
Section 24 promotes the objects of the Act to extend as far as possible the right of the community to access information held by government by giving agencies and Ministers the option to grant access to a document, but to defer the provision of access until some specified time or event.
The power in section 24 is discretionary. This means agencies and Ministers can choose not to delay access, and provide immediate access, even if one of the circumstances in section 24 is met.
Access can also be delayed if the document has been prepared solely for inclusion in a different document that is yet to be prepared for presentation to Parliament or a council or for release to the Press.8 This applies irrespective of whether it is a complete or an amended version of the document that is included in the other document.
Example
An FOI officer asks a business unit of the agency to conduct a search for documents falling within the terms of a request.
The business unit provides a document to the FOI officer, informing them that the document has been prepared to be included in a report that is being prepared for presentation to Parliament. The business unit explains that either the entire document or a summary version of the document will be included in the report to Parliament.
The FOI officer is satisfied the document has been prepared solely for inclusion in a document that will be presented to Parliament. Accordingly, the FOI officer decides to defer access to the document until after presentation to Parliament.
Release to the Press
‘Prepared for release to the Press’ does not include documents prepared for release to the public generally.15 Similarly, an agency or Minister cannot rely on this exception to delay access to a draft document that will be eventually released to the public.16
Example
AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170
Background
The applicant requested access to an audit document regarding VicForests’ harvesting activities.
The agency deferred access ‘until such time that the document has been approved for release to the Press and other stakeholders’.
The applicant sought review of the agency’s decision by the Office of the Victorian Information Commissioner (OVIC).
In its submission to OVIC, the agency stated: ‘the document is still at a draft stage and we are currently unable to identify the exact date that the document will be released’.
Decision
OVIC was not satisfied the document was ‘prepared for release to the Press’ for the following reasons:
- the document was in draft form and intended to be released to the public generally, as opposed to being prepared for the media; and
- the purpose of preparing the document was for the agency to meet its forestry regulations obligations, it was not prepared for the purpose of release to the media.
An agency or Minister must provide reasons for its decision to defer access to a document, in its notice of decision.18
Length of deferral
An agency or Minister must, as far as practicable, specify in its notice of decision how long access is deferred for (the length of deferral).22 If an agency or Minister cannot specify the length of the deferral, it must explain to the applicant why it cannot do so.
The phrase ‘as far as practicable’ has been interpreted in different contexts as requiring a common-sense approach.23 For example, the Macquarie Dictionarydefines ‘practicable’ as ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’. The Oxford English Dictionary defines ‘practicable’ as ‘capable of being put into practice, carried out in action, effected, accomplished or done; feasible’.
In deciding practicability, an agency or Minister must exercise reasonable and fair judgement and consider the particular circumstances of each matter. This may include the nature of the information or documents being considered and the resources and capacity of the agency or Minister.
The notice requirement implies that access should be deferred only until the document has been published, presented, or submitted.24
Example
An agency makes a decision on 5 March to defer access to a document until after the document is presented to Parliament on 15 March.
The agency’s decision explains that access has been deferred until 16 March, because the document will be presented to Parliament on 15 March.
The agency gives the applicant access to the document on 16 March.
- Freedom of Information Act 1982 (Vic), section 24(1)(a).
- Freedom of Information Act 1982 (Vic), section 24(1)(aa).
- Freedom of Information Act 1982 (Vic), section 24(1)(b).
- Freedom of Information Act 1982 (Vic), section 24(1)(c).
- Freedom of Information Act 1982 (Vic), section 24(1)(a).
- Freedom of Information Act 1982 (Vic), section 24(1)(aa).
- Freedom of Information Act 1982 (Vic), section 24(1)(b).
- Freedom of Information Act 1982 (Vic), section 24(1)(c).
- Freedom of Information Act 1982 (Vic), section 24(1)(b).
- AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
- AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
- AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
- Freedom of Information Act 1982 (Vic), section 24(1)(b).
- AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
- AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
- AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
- Freedom of Information Act 1982 (Vic), section 24(2). Reasons much be provided in the notice of decision prepared under section 27.
- Freedom of Information Act 1982 (Vic), section 24(2). Reasons much be provided in the notice of decision prepared under section 27.
- Freedom of Information Act 1982 (Vic), section 24(2).
- Re Shubert v Department of Premier and Cabinet (2001) 19 VAR 35, 45.
- Moira Paterson, Freedom of Information and Privacy in Australia (LexisNexis Butterworths, 2nd ed, 2015) ch 3 [3.62].
- Freedom of Information Act 1982 (Vic), section 24(2).
- Re Shubert v Department of Premier and Cabinet (2001) 19 VAR 35, 45.
- Moira Paterson, Freedom of Information and Privacy in Australia (LexisNexis Butterworths, 2nd ed, 2015) ch 3 [3.62].
