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Section 24 - Deferment of access

Guidelines

Delaying access to a document

1.1

An agency or Minister may defer (delay) access to a requested document in certain circumstances.

1.2

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.

1.3

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.

1.4

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.

When can access be delayed?

1.5

Access can be delayed if the document has been prepared for:

  • presentation to the Parliament;1
  • presentation to a council;2 or
  • release to the Press,3

and the document has not yet been presented or released.

1.6

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.4 This applies irrespective of whether it is a complete or an amended version of the document that is included in the other document.

Release to the Press

1.7

An agency or Minister may delay access to a document because the document has been prepared for release to the Press.9 For example, a press release or similar document where release is embargoed.10

1.8

‘Prepared for release to the Press’ does not include documents prepared for release to the public generally.11 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.12

Notifying the applicant of reasons for decision and length of delay

Reasons for decision

1.9

An agency or Minister must provide reasons for its decision to defer access to a document, in its notice of decision.17

Length of deferral

1.10

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).19 If an agency or Minister cannot specify the length of the deferral, it must explain to the applicant why it cannot do so.

1.11

The phrase ‘as far as practicable’ has been interpreted in different contexts as requiring a common-sense approach.20 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’.

1.12

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.

1.13

The notice requirement implies that access should be deferred only until the document has been published, presented, or submitted.21

  1. Freedom of Information Act 1982 (Vic), section 24(1)(a).
  2. Freedom of Information Act 1982 (Vic), section 24(1)(aa).
  3. Freedom of Information Act 1982 (Vic), section 24(1)(b).
  4. Freedom of Information Act 1982 (Vic), section 24(1)(c).
  5. Freedom of Information Act 1982 (Vic), section 24(1)(a).
  6. Freedom of Information Act 1982 (Vic), section 24(1)(aa).
  7. Freedom of Information Act 1982 (Vic), section 24(1)(b).
  8. Freedom of Information Act 1982 (Vic), section 24(1)(c).
  9. Freedom of Information Act 1982 (Vic), section 24(1)(b).
  10. AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
  11. AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
  12. AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
  13. Freedom of Information Act 1982 (Vic), section 24(1)(b).
  14. AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
  15. AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
  16. AS7 and Department of Environment, Land, Water and Planning [2019] VICmr 170, [18].
  17. Freedom of Information Act 1982 (Vic), section 24(2). Reasons much be provided in the notice of decision prepared under section 27.
  18. Freedom of Information Act 1982 (Vic), section 24(2). Reasons much be provided in the notice of decision prepared under section 27.
  19. Freedom of Information Act 1982 (Vic), section 24(2).
  20. Re Shubert v Department of Premier and Cabinet (2001) 19 VAR 35, 45.
  21. Moira Paterson, Freedom of Information and Privacy in Australia (LexisNexis Butterworths, 2nd ed, 2015) ch 3 [3.62].
  22. Freedom of Information Act 1982 (Vic), section 24(2).
  23. Re Shubert v Department of Premier and Cabinet (2001) 19 VAR 35, 45.
  24. Moira Paterson, Freedom of Information and Privacy in Australia (LexisNexis Butterworths, 2nd ed, 2015) ch 3 [3.62].

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Last updated 27 December 2023

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