Section 27 - Reasons etc. to be given

In response to an applicant’s FOI request, an agency or Minister must provide an applicant with a written notice of decision in certain situations and must, amongst other things, include the reasons for the decision.⁴

The notice of decision must be made by an authorised decision maker.⁵

There is certain information an agency or Minister must include in a notice of decision, and some information that an agency or Minister does not have to include.⁶ This is outlined below.

Section 27 facilitates good decision making, transparency and accountability. Detailed decisions:

• help ensure agencies and Ministers meet their obligations under the Act and the Professional Standards;
• help applicants understand what was considered in making a decision, why a particular decision was made, and the reasons for that decision; and
• can reduce follow-up enquiries an agency or Minister receives regarding the decision, and can reduce complaint and review applications to the Office of the Victorian Information Commissioner.

In response to a request for access made under section 17, an agency or Minister must provide an applicant with a written notice of decision for:

• a decision to not grant access to a document in accordance with the request;
• a decision to defer access to a document under section 24;
• a decision that the document does not exist or cannot be found.

A notice of decision may contain one or more types of decision in response to the request.

If access is granted in full to all requested documents, an agency or Minister does not have to provide a written notice of decision. However, it is still best practice to provide a written decision to the applicant as this can help the applicant to understand the type and number of documents they have been granted access. A written decision can also help to reduce follow up enquiries about whether an agency or Minister has complied with its obligations under the Act. Follow up enquiries may occur where an applicant believes the agency or Minister misunderstood the terms of the request or did not conduct a thorough and diligent search.

An agency or Minister must provide a written notice of decision where the agency or Minister decides not to provide access to a document in accordance with the applicant’s request.⁸ This includes where an agency or Minister decides:

• to apply an exception under sections 24, 25A(1) or 25A(5), to refuse a request without processing it;
• to apply an exemption to a document in full or in part under Part IV;
• to delete irrelevant information from a document under section 25;
• to grant access in a form different to the form requested under section 23;
• to produce a document under section 19, when this was not requested by the applicant;
• Part III does not apply to the requested document. For example, due to section 14, or a provision in other legislation that excludes the operation of the Act.

In response to a request to amend a record made under Part V, section 45 requires an agency or Minister to provide an applicant with a written notice of decision under section 27 for a decision to not amend a record in accordance with the request.

Section 27 and Professional Standards 8.1, 8.2, 8.3 and 8.4outline what an agency or Minister must include in a notice of decision.¹⁰ When drafting a decision, an agency or Minister should include the following information.

The terms of the request should be clearly set out, and if relevant, detail any information as to how the request was interpreted.

If there was any initial consultation with an applicant to clarify the scope of the request, or an original request was not valid, the consultation should be noted in the decision along with the applicant’s confirmation of the final terms of the request.

It is good practice to:

• set out any background information that is relevant to the documents or decision. This might include explaining how the documents were created or the matters to which they relate; and
• set out any relevant timeframes for processing the request. For example, any extension of time agreed by the applicant or required for consultation; any time during which the processing time was suspended in accordance with section 25A(7); or, if the applicant paid a deposit under section 22, the date when the processing period commenced.

This type of background information provides context for the decision and can assist an applicant’s understanding of the documents identified and the way the request has been processed.

An agency or Minister must undertake a thorough and diligent search for documents falling within the scope of the request.

An agency or Minister must take all reasonable steps to identify all relevant documents in the agency’s or Minister’s possession.¹²

Reasonable steps will depend on the circumstances of each request. An agency or Minister should take a practical and common sense approach to undertaking a document search with reference to the terms of the request and an understanding of the agency’s or Minister’s record keeping practices.

At a minimum an agency or Minister must:

• determine which documents or types of documents the applicant is seeking access to, with reference to the terms of the applicant’s request;
• identify the most appropriate business area or unit to conduct the search (depending on the applicant’s request and the agency’s or Minister’s record keeping practices, this could involve multiple business units and individuals, including external consultants or businesses engaged or employed by the agency or Minister);
• conduct a thorough and diligent search to locate all relevant electronic and hard copy documents;
• ensure a record is kept of searches undertaken (Professional Standard 6.1).

An agency or Minister should consider the nature, age and type of documents being requested to assist in determining where and how to search for them. For example, if an applicant seeks access to emails related to a particular agency officer that is still employed at the agency, that officer should be consulted and asked to provide relevant documents.

It may be useful, and necessary in some cases, to refer to the context in which the documents were created. For example, if the documents relate to a particular incident, this may clarify the types of documents that may exist – such as incident forms, investigation reports, and internal improvement briefings – or it may be the case that no relevant documents exist because no such incident occurred.

In most cases it will be helpful to have a conversation with the applicant, to ensure the agency’s or Minister’s understanding of the request is clear. Establishing a relationship with the applicant can also assist an agency or Minister to write a clear decision that is tailored to the applicant’s request.

To ensure all relevant places are searched, it is important for an agency or Minister to understand where and how documents are stored. Therefore, an agency or Minister should ensure it understands its own record holdings and records management systems (including digital, hard copy and archived systems), and identify its document storage policies and practices where relevant.

Conducting a thorough and diligent search will usually require an FOI Officer to consult internally with one or more business areas of the agency or Minister as they will likely be the subject matter expert for the requested documents and know where to find them.

Internal consultation can take some time, so it is important to identify this, consult early, and let the applicant know of any possible delays.

When consulting internally, an agency or Minister should ensure the business area understands:

• the terms of the request;
• the time frame for responding to the search request (noting the statutory time frame for responding to a request and any extensions of time)
• that all relevant documents in existence at the time the request was made must be provided to the FOI unit or officer for assessment, including documents the business unit may consider are sensitive, marked ‘privileged’ or ‘confidential’, draft and duplicate documents;
• multiple document storage systems may need to be searched, including electronic files, hard copy and archived files;
• details of all searches must be recorded (Professional Standard 6.1);
• Professional Standard 9.5 requires the agency business unit or officer to assist and cooperate with the FOI unit in processing the request; and
• the decision whether to release documents in response to a request is made by the agency’s principal officer or authorised officer under section 26 (for example, the FOI Officer).

To help with assessing the documents, it is also useful to ask the business area to:

• explain the background and context in which the documents were created (for example, why they were created and their significance); and
• identify any particular sensitivities or concerns with releasing the documents to the applicant.

While consulting internally can provide helpful and often crucial information to assess a document, it should not impede the decision-making process, nor cause unnecessary delay.

Only an authorised officer may make an FOI decision and the business area cannot direct an authorised officer to make a particular decision under the Act (Professional Standard 8.1).

Under Professional Standard 6.1, where a document search is conducted, an agency must ensure it keeps a record of the searches, including information about the locations searched, the method or type of searches undertaken, and where applicable, the key words used in the searches. To comply with this standard, a record may include a completed proforma template, email response, file note or some other type of record.

Keeping a record of document searches undertaken is a good record keeping practice and will help an agency develop a more precise understanding of the nature of the search required for requests, including the time and resources involved. This will enable the agency to ensure a thorough and diligent search has been completed by agency officers, enable the agency to accurately calculate access charges where applicable, and respond to complaints made to the Office of the Victorian Information Commissioner (OVIC) under section 61A.

Where a requested document cannot be located or does not exist, Professional Standard 8.4 requires an agency to include in the written notice of decision:

• the fact the document cannot be found;
• a summary of the document searches, including the locations searched, method or type of searches undertaken and where applicable, the key words used; and
• where practicable, explain why the requested document does not exist or could not be located.

Professional Standard 8.4 applies to part of a request or the entire request.

There may be several reasons why a document cannot be located. For example:

• the document may never have existed or been held by the agency;
• the document may have previously been in the agency’s possession, but it was destroyed in accordance with a Public Record Office Victoria Retention and Disposal Authority and the agency’s internal processes; or
• the document may have been created but cannot be found, despite conducting a thorough and diligent search.

In some circumstances, an agency or Minister may not be able to explain why a document cannot be found. In those instances, it will be sufficient for an agency or Minister to note in its decision letter that it is unsure why a document does not exist or could not be located, provided it describes the searches undertaken to locate the document.

Where a document does not exist or cannot be located, the notice of decision must inform an applicant of their right to complain to OVIC.¹⁴

Professional Standard 8.3(b) requires an agency to take reasonable steps to describe in the notice of decision, the documents or types of documents discovered. For example, the documents may be emails, a file note, a letter, photographs, screen shots or a video recording. Wherever reasonable, the description should include who authored the document and the subject matter of the document.

It is also good practice to provide a brief summary of searches undertaken to demonstrate to an applicant the steps taken to locate the documents.

Professional Standard 8.3(a) requires an agency to identify in the notice of decision whether documents are being released in full, released in part, or denied in full.

An agency or Minister must also identify in the decision, the documents from which exempt or irrelevant information has been deleted in accordance with section 25.¹⁷

An agency or Minister must make a decision about each document falling within a request. Where a request is made for access to a file which contains multiple documents, a decision must be made for each document in the file.¹⁸

Agencies and Ministers should consider using a schedule of documents to outline the decision on each document. At a minimum, a schedule contains a brief description of each document, how many pages the document contains, and the agency’s decision on each document.

Providing reasons for the making of an administrative decision by an agency or Minister is an important part of the FOI process.

In a notice of decision, an agency or Minister must state the findings on any material questions of fact, referring to the material on which those findings were based, and the reasons for the decision.²¹

Similarly, Professional Standard 8.2 requires an agency to explain why each exception or exemption applies, and address each limb of the exception or exemption. It is not sufficient to simply state a document is exempt, or that relevant limbs of an exemption or exception are satisfied. The agency must explain how it reached its decision with respect to each specific document, by referring to the facts that were considered when assessing each document and explaining how those facts apply to each document to support the exemption or exception.

If third parties were consulted about the disclosure of their information (for example, personal affairs information), their response and its impact on the decision should be explained in the notice of decision.

If an agency or Minister applies the exemption in section 30(1), the decision must state the public interest considerations on which the decision is based.²²

Where access charges are imposed under section 22, the decision should outline how much the applicant is required to pay, how the charges were calculated and how the charges can be paid.

The decision should outline the effect of non-payment and that, in accordance with section 20(1)(b), the applicant will receive the relevant documents once the access charges are paid.

Professional Standard 4.3 requires an agency to take reasonable steps to provide options for payment of the access charges that are the same as the payment methods the agency provides for other services of a similar financial sum.

An agency or Minister should tell an applicant that they have the right to seek a certificate from OVIC to enable the applicant to seek review by the Victorian Civil and Administrative Tribunal (VCAT) of any access charges imposed.

If an agency or Minister decides to provide access to documents, it should explain how and when those documents will be provided to the applicant so the applicant understands when they can expect to receive the documents, and in what form.

It is important to note any third party review rights in the decision letter. Third party review rights arise when third parties were consulted, they objected to the release of their information or they did not respond, and the agency’s or Minister’s decision is to release that information.

Where a third party is provided with review rights, an agency or Minister must make it clear in its decision that the applicant cannot access the documents until after the 60 day third party appeal period ends. It should also be made clear to the applicant that if they are not happy with the decision, they may apply for a review by OVIC within 28 days rather than waiting for the release of documents subject to the third party appeal period. This will preserve the applicant’s review rights while they wait for the third party appeal period to expire.

Only the documents containing the third party information need to be withheld until the third party appeal period ends. If there are other documents to which access has been granted, the agency or Minister does not have to wait for the third party appeal period to end before releasing those documents to the applicant.

An agency or Minister must tell an applicant of their right to apply to OVIC for a review of a decision if the agency or Minister decides to:

• refuse access to a document in accordance with a request;
• defer access to a document under section 24; and
• not amend a document pursuant to a request under section 39.

An agency or Minister must inform the applicant of the time frame in which the applicant must apply for a review.²⁴

If an agency or Minister decides to make the applicant pay access charges, the agency or Minister should also inform an applicant of their right to apply to OVIC for a certificate to enable the applicant to apply to VCAT for review of the decision to impose access charges or the access charges amount.

An agency or Minister must tell an applicant in the notice of decision of their right to complain to OVIC if the agency or Minister cannot locate a document or the document does not exist.²⁶

An agency or Minister must include in the notice of decision, the name and position of the person making the decision.²⁸

Section 27(2) outlines certain information that an agency and Minister do not have to include in a notice of decision. These are outlined below.

An agency or Minister does not have to include exempt information in the notice of decision.³⁰

An agency or Minister should consider whether the mere description of documents or the explanation of the reasons for decision would reveal exempt information.

An agency or Minister is not required to confirm or deny the existence of a document in a decision, where:

• confirming or denying the existence of a document would involve the disclosure of section 33 exempt information;³⁵ or
• the decision relates to a document that is (or would be if it existed) an exempt document under sections 28, 29A, 31 or 31A.³⁶

An agency or Minister may neither confirm nor deny the existence of a document where acknowledging that a document exists would be an unreasonable disclosure of personal affairs information for the reason that it would increase the risk to a primary person’s safety from family violence or increase the risk to the safety of a child or group of children.³⁷

An agency or Minister may neither confirm nor deny the existence of a document where such a disclosure, would, in and of itself, disclose information the exemption was designed to prevent from being disclosed.³⁸ For example, disclosing that a document exists or does not exist may prejudice the investigation of a breach of the law by disclosing whether the applicant is a person of interest. If so, this information is exempt under section 31(1)(a), and the agency can decide to apply the exemption and neither confirm nor deny the existence of the document.

If an agency or Minister relies on section 27(2)(b) and the decision is reviewed, the agency or Minister will need to produce evidence specific to the context of the request and the document in issue, to justify its decision.

There is a different way to provide a decision to an applicant in the case of the applicant’s own health information, in specific instances.

If an agency or Minister decides to refuse access to a document containing the applicant’s own health information because it is exempt under section 33(4), the agency or Minister must tell the applicant in the notice of decision of the time within which the applicant must:

• provide a written notice under section 38 of the Health Records Act 2001 (Vic) nominating a health service provider to assess the ground for refusal;
• apply to the Information Commissioner for a review of the decision; and
• apply to the Health Complaints Commissioner for conciliation.⁴¹

Section 33(4) is where a principal officer or Minister believes on reasonable grounds that the ground in section 36 of the Health Records Act 2001 (Vic) is engaged. That ground allows an agency or Minister to refuse access to a person’s own health information where ‘providing access would pose a serious threat to the life or health of the individual’.

If the decision is to refuse access to a document containing health information for a reason other than the ground in section 36 of the Health Records Act 2001, the agency or Minister must tell the applicant in the notice of decision of the time within which the applicant must:

• apply to OVIC for a review of the decision; and
• if applicable, apply to the Health Complaints Commissioner for conciliation.⁴²