Skip to Content
From Monday 12 September 2020, OVIC's website will no longer be supported in Internet Explorer (IE).
We recommend installing Microsoft Edge, Google Chrome, Safari, Firefox, or Opera to visit the site.

Section 5 - Definitions

Guidelines

Agency

1.1

An ‘agency’ includes a Victorian government department, a council, or ‘prescribed authority’.1 It does not include a Commonwealth or other State or Territory agency.

1.2

Another Act may also deem a person to be an agency for the purpose of the Act in some circumstances. This means they are an agency under the Act, and a person may make an FOI request to that person.

1.3

Conversely, another Act may deem that a particular person cannot be declared to be an agency or prescribed authority for the purpose of the Act. This means that person cannot be an agency or prescribed authority under the Act, and an FOI request cannot be made to that person.

Applicant

1.4

Any person may make an FOI request, however, an ‘applicant’ is a person who has:

  • made a valid request under section 17 (if the request is not valid, the person will not be an applicant for the purpose of the Act unless or until the request becomes valid); or
  • applied under section 12(1) for a statement published by a Principal Officer to be updated to specify a document not previously specified.
1.5

Part V refers to a ‘claimant’ in the context of requesting an amendment to a document containing the person’s personal information, rather than ‘applicant’.15

Assessable disclosure

1.6

‘Assessable disclosure’ is defined in section 3 of the Public Interest Disclosure Act 2012 (Vic) (PID Act) and means:

  • a disclosure that, under sections 21(2) or (3) of the PID Act, must be notified to the Independent Broad-based Anti-corruption Commission (IBAC), Victorian Inspectorate or the Victorian Parliament’s Integrity and Oversight Committee;
  • a disclosure that, under section 36(2) of the PID Act, must be notified to the IBAC, the Victorian Inspectorate or the Victorian Parliament’s Integrity and Oversight Committee;
  • a disclosure made to the IBAC in accordance with Division 2 of Part 2 of the PID Act;
  • a disclosure made to the Victorian Inspectorate under section 14(b) of the PID Act;
  • a disclosure made to the Victorian Parliament’s Integrity and Oversight Committee under section 14(a) of the PID Act;
  • a police complaint disclosure that, under section 22 of the PID Act, must be notified to the IBAC;
  • a police complaint disclosure made to the IBAC.
1.7

Assessable disclosures are relevant to the Information Commissioner’s powers in Division 3, Part VIB, to investigate public interest complaints referred to the Information Commissioner by IBAC.

Authorised Hub entity

1.8

‘Authorised hub entity’ is defined in section 144SB of the Family Violence Protection Act 2008 (Vic) (FVP Act) and means:

  • a person or body declared under section 144SC of the FVP Act to be an authorised Hub entity;
  • the Department of Health and Human Services;
  • Family Safety Victoria;
  • and includes an officer, employee or contracted service provider of such an entity.
1.9

The fact that an agency is an authorised hub entity can be a relevant consideration in applying the exemption in section 33(1) for documents affecting an individual’s personal privacy.

Council

1.10

‘Council’ is defined in section 3(1) of the Local Government Act 2020 (Vic) to mean “a municipal Council (including the Melbourne City Council and the Greater Geelong City Council) whether constituted before or after the commencement of this section”.

1.11

A council is an agency for the purposes of the Act. This means a person can make an FOI request to a council under section 17.

Department

1.12

‘Department’ means:

  • a Department existing by virtue of an Order made under section 10 of the Public Administration Act 2004 (Vic) (PA Act);17 and
  • the offices and bodies set out in section 16(1) of the PA Act.
1.13

A department is an agency for the purposes of the Act. This means a person can make an FOI request to a department under section 17.

Document

1.14

The definition of ‘document’ in section 5(1) is broad.19 It captures any record of information in any form and however stored, whether a draft or final version, physical or electronic.20 It also includes a copy, reproduction, or duplicate of a document, or any part of a copy, reproduction or duplicate of a document.21

1.15

The Act does not cover information that is not recorded. For example, a verbal conversation between two employees of an agency would not fall under the Act. However, any informal written records or file notes about the conversation would be considered a document. Similarly, an audio recording of the conversation would be a document for the purpose of the Act.

Creating a document

1.16

An agency or Minister may have to create a document in specific instances. This is where the applicant requests information that 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.29 The same will apply where the agency can make a transcript for a sound recording it holds.

Document of an agency

1.17

A ‘document of an agency’ is a record of information in the possession or control of an agency, regardless of the way it is stored, and whether the agency created or received the document.31

 

1.18

The focus the definition is on ‘possession’ as opposed to ownership. It does not matter if the document was created by another agency, belongs to someone else, or is stored electronically.32 If it is in the possession of the agency, it is subject to access under the Act.

‘In the possession of’

1.19

A document is ‘in the possession’ of an agency if the agency has:

  • actual possession of the document, meaning it has physical possession (for example, in a case or records management system, on a shared drive, on the local drive of an agency computer, or a hard copy complaint file) and control of the document; or
  • constructive possession of the document, meaning it has a legal right to obtain actual possession or the power to deal with the document (for example, a contractual or legal right to require someone to provide the document to the agency).35
1.20

Whether an agency is in possession of a document depends on each matter’s facts and circumstances. Considerations include:

  • whether the agency physically possesses the document or has an intention to possess the document;
  • any contractual arrangements that exist in relation to the document;
  • whether the agency has a right to control the document; or
  • the purpose for which the document was created and by whom.
1.21

Having physical custody of a document alone may not necessarily mean an agency is ‘in the possession’ of a document. For example, in Colonial Range Pty Ltd v Victorian Building Authority, an agency was considered to have physical access to a requested document, but not control of the document. Judge Harbison noted:

I accept that the document is properly described as being in the physical custody of the respondent. I do not accept that this by itself means that the document is in the possession of the respondent for the purposes of this FOI application. Were this the case, any document inadvertently obtained could be described in this way.

I accept that what is required is evidence of an intention to possess the document, and or a right to control the document.36

A document of the agency or a personal document

1.22

A document created by an agency officer in a personal capacity (or for personal reasons), that the agency does not control, is not a document of that agency. That is, unless the agency officer created the document as part of, and for the purpose of, their duties at the agency.

Health information

1.23

‘Health information’ is defined in section 3 of the Health Records Act 2001 (Vic) and includes, among other things, information or opinion about:

  • the health (physical, mental or psychological) of an individual;
  • an individual’s disability;
  • a health service provided, or to be provided, to an individual, that is also personal information; or
  • other personal information collected to provide, or in providing, a health service.
1.24

The Act contains special provisions that may be enlivened when an FOI request is made for a document containing an applicant’s health information. In broad terms, the provisions relate to:

  • special forms of access, where access is granted (section 23);
  • special procedures for refusing access, where access is refused (sections 27 and 33); and
  • special review rights (sections 49B and 49Q).

Officer

1.25

The term ‘officer’ is defined broadly and has been found to cover independent contractors and consultants employed or engaged by an agency to carry out work or provide services.39 It also includes:

Official document of a Minister or official document of the Minister

1.26

An ‘official document of a Minister’ means a document in the possession of a Minister that relates to the affairs of an agency, but is not a document of an agency.

1.27

For the purposes of the Act, a Minister will be in possession of a document that has passed from the Minister’s possession if they are entitled to access the document, so long as the document is not a document of an agency.

1.28

A document of a Minister that contains matters unrelated to the affairs of an agency, such as in the Minister’s capacity as a member of a political party, as a parliamentarian or in a personal diary, is not an ‘official document of a Minister’ for the purposes of the Act and therefore cannot be requested under the Act.

Prescribed authority

1.29

‘Prescribed authority’ is defined as:

  • a body corporate established for a public purpose by an Act;
  • an unincorporated body created by the Governor in Council or a Minister;
  • any other incorporated or unincorporated body declared by the Freedom of Information Regulations 2019 (Vic) (FOI Regulations) to be a prescribed authority for the purposes of the Act;49
  • subject to section 5(3), the person holding, or performing the duties of, an office established by an Act; or
  • the person holding, or performing the duties of, an appointment declared by the FOI Regulations to be a prescribed authority for the purposes of the Act, being an appointment made by the Governor in Council, or by a Minister, otherwise than under an Act.
1.30

Schedule 1 of the FOI Regulations lists prescribed authorities for the purposes of the Act.

1.31

Victoria Police is deemed to be a prescribed authority.51

1.32

Other laws may deem certain bodies to be prescribed authorities.

1.33

A prescribed authority is an agency for the purposes of the Act.52 This means a person may make an FOI request under section 17 to that prescribed authority.

Bodies, offices and appointments which are not a public authority

1.34

Some bodies, offices, and appointments are expressly excluded from the definition of ‘prescribed authority’ and are not an agency for the purposes of the Act. This means a person may not make an FOI request under section 17 to these bodies, offices, or appointments.

1.35

Some legislation expressly excludes certain persons from being declared a prescribed authority under the Act.

Body may comprise part of the prescribed authority

1.36

Where an unincorporated body such as a board, council, committee, sub-committee or other body is established by an Act to assist with or perform functions connected with a prescribed authority, that unincorporated body will not be a standalone ‘prescribed authority’.

1.37

Instead, such bodies are deemed to comprise part of the relevant prescribed authority.67

Body corporate established for a public purpose

1.38

‘Prescribed authority’ includes a body corporate ‘established for a public purpose by, or in accordance with, the provisions of an Act’.

1.39

In the Second Reading Speech for the Freedom of Information Bill 1982, former Victorian Premier John Cain noted:

The term “public purposes” means Government purposes, and a body established for public purposes is one that carries on an undertaking of a public nature for the benefit of the community or of some sectional or geographical division of the community, with Governmental authority to do so, and with the support of Government finance. A body which conducts itself for private profit is not a public authority.

Principal officer

1.40

A principal officer of an agency will depend on the type of agency concerned (for example, whether the agency is a department, council or prescribed authority). However, a principal officer generally includes a departmental secretary (in relation to departments), the heads of agencies or authorities, chief executive officers, and chairpersons.

1.41

In some instances, another Act may require a contracted service provider to identify an office holder who will act as the service provider’s principal officer for the purpose of the Act.

1.42

Principal officers have responsibilities and obligations under the Act and the FOI Professional Standards.

Request

1.43

‘Request’ means a request made in accordance with the requirements in section 17. This is also referred to as a ‘valid request’.

1.44

A request that does not meet the requirements of section 17 is not a ‘request’ for the purposes of the Act. This is also referred to as an ‘invalid request’ or a request that has not been validly made under the Act.

1.45

An agency or Minister is not required to process an invalid request. However, they are required to assist a person to make a valid request.77

  1. To find an agency, use OVIC’s Find an Agency tool, available here: https://ovic.vic.gov.au/freedom-of-information/for-the-public/find-an-agency/; information about agencies subject to the Act is also in Appendix A, Part 1 and Part 2 in OVIC’s Annual Reports.
  2. Plant Biosecurity Act 2010 (Vic) section 73(1).
  3. Corrections Act 1986 (Vic) sections 9F(a) and 9F(d).
  4. Victorian Funds Management Corporation Act 1994 (Vic) section 39
  5. Gas Industry (Residual Provisions) Act 1994 (Vic) section 101A.
  6. Treasury Corporation of Victoria Act 1992 (Vic) section 40.
  7. Electricity Industry (Residual Provisions) Act 1993 (Vic) section 91A.
  8. To find an agency, use OVIC’s Find an Agency tool, available here: https://ovic.vic.gov.au/freedom-of-information/for-the-public/find-an-agency/; information about agencies subject to the Act is also in Appendix A, Part 1 and Part 2 in OVIC’s Annual Reports.
  9. Plant Biosecurity Act 2010 (Vic) section 73(1).
  10. Corrections Act 1986 (Vic) sections 9F(a) and 9F(d).
  11. Victorian Funds Management Corporation Act 1994 (Vic) section 39
  12. Gas Industry (Residual Provisions) Act 1994 (Vic) section 101A.
  13. Treasury Corporation of Victoria Act 1992 (Vic) section 40.
  14. Electricity Industry (Residual Provisions) Act 1993 (Vic) section 91A.
  15. However, in the second reading speech for the Freedom of Information Bill 1982, former Victorian Premier John Cain refers to a person who requests an amendment under Part V as an ’applicant’. Nonetheless, section 46 in Part V outlines a review process for a claimant where an agency or Minister has refused to amend a record.
  16. However, in the second reading speech for the Freedom of Information Bill 1982, former Victorian Premier John Cain refers to a person who requests an amendment under Part V as an ’applicant’. Nonetheless, section 46 in Part V outlines a review process for a claimant where an agency or Minister has refused to amend a record.
  17. A list of Victorian government departments can be found here.
  18. A list of Victorian government departments can be found here.
  19. Monash University v EBT [2022] VSC 651 [14].
  20. Monash University v EBT [2022] VSC 651 [7], [14], [88], [103], [105]-[132].
  21. Freedom of Information Act 1982 (Vic) section 5(1), definition of ‘document’ sub-sections (g) and (h).
  22. ‘EW6’ and Development Victoria [2022] VICmr 234 [28].
  23. Lawless v Department, Chief Commissioner of Police & Director of Public Prosecutions (1985) 1 VAR 42.
  24. Monash University v EBT [2022] VSC 651 [14].
  25. Monash University v EBT [2022] VSC 651 [7], [14], [88], [103], [105]-[132].
  26. Freedom of Information Act 1982 (Vic) section 5(1), definition of ‘document’ sub-sections (g) and (h).
  27. ‘EW6’ and Development Victoria [2022] VICmr 234 [28].
  28. Lawless v Department, Chief Commissioner of Police & Director of Public Prosecutions (1985) 1 VAR 42.
  29. Monash University v EBT [2022] VSC 651.
  30. Monash University v EBT [2022] VSC 651.
  31. Monash University v EBT [2022] VSC 651 [7], [83].
  32. See Williams v Victoria Police (General) [2005] VCAT 2516.
  33. Monash University v EBT [2022] VSC 651 [7], [83].
  34. See Williams v Victoria Police (General) [2005] VCAT 2516.
  35. Office of the Premier v Herald and Weekly Times [2013] VSCA 79; Colonial Range Pty Ltd v Victorian Building Authority [2017] VCAT 1198.
  36. Colonial Range Pty Ltd v Victorian Building Authority [2017] VCAT 1198 [174]–[175].
  37. Office of the Premier v Herald and Weekly Times [2013] VSCA 79; Colonial Range Pty Ltd v Victorian Building Authority [2017] VCAT 1198.
  38. Colonial Range Pty Ltd v Victorian Building Authority [2017] VCAT 1198 [174]–[175].
  39. See, for example, Thwaites v Department of Human Services (No 2) (1998) 14 VAR 347; Mees v University of Melbourne (General) [2009] VCAT 782; Koch v Swinburne University [2004] VCAT 1513.
  40. QEX v Department of Health (Review and Regulation) [2022] VCAT 349 (8 April 2022) at [37].
  41. Thwaites v Department of Human Services (No 2) (1998) 14 VAR 347 at [31].
  42. Mees v University of Melbourne (General) [2009] VCAT 782 at [31].
  43. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission & Anor (Review and Regulation) [2013] VCAT 822 (24 May 2013) citing J Preuss Member in re Cole and Department of Justice (1994) 8 VAR 114 at 127.
  44. See, for example, Thwaites v Department of Human Services (No 2) (1998) 14 VAR 347; Mees v University of Melbourne (General) [2009] VCAT 782; Koch v Swinburne University [2004] VCAT 1513.
  45. QEX v Department of Health (Review and Regulation) [2022] VCAT 349 (8 April 2022) at [37].
  46. Thwaites v Department of Human Services (No 2) (1998) 14 VAR 347 at [31].
  47. Mees v University of Melbourne (General) [2009] VCAT 782 at [31].
  48. Hennessy v Minister Responsible for the Establishment of an Anti-Corruption Commission & Anor (Review and Regulation) [2013] VCAT 822 (24 May 2013) citing J Preuss Member in re Cole and Department of Justice (1994) 8 VAR 114 at 127.
  49. See ‘Schedule 1 – Prescribed authorities’ of the Freedom of Information Regulations 2019 (Vic) for a list of bodies declared to be a prescribed authority for the purposes of the Act.
  50. Refer to the Freedom of Information Regulations 2019 (Vic) for a list of the most up to date prescribed authorities.
  51. Freedom of Information Act 1982 (Vic), section 5(4).
  52. Freedom of Information Act 1982 (Vic), section 5(1) ‘agency’.
  53. See ‘Schedule 1 – Prescribed authorities’ of the Freedom of Information Regulations 2019 (Vic) for a list of bodies declared to be a prescribed authority for the purposes of the Act.
  54. Refer to the Freedom of Information Regulations 2019 (Vic) for a list of the most up to date prescribed authorities.
  55. Freedom of Information Act 1982 (Vic), section 5(4).
  56. Freedom of Information Act 1982 (Vic), section 5(1) ‘agency’.
  57. Public Interest Monitor Act 2011 (Vic), section 18.
  58. Victorian Funds Management Corporation Act 1994 (Vic), section 39.
  59. Gas Industry (Residual Provisions) Act 1994 (Vic), section 101A.
  60. Treasury Corporation of Victoria Act 1992 (Vic), section 40.
  61. Electricity Industry (Residual Provisions) Act 1993 (Vic), section 91A.
  62. Public Interest Monitor Act 2011 (Vic), section 18.
  63. Victorian Funds Management Corporation Act 1994 (Vic), section 39.
  64. Gas Industry (Residual Provisions) Act 1994 (Vic), section 101A.
  65. Treasury Corporation of Victoria Act 1992 (Vic), section 40.
  66. Electricity Industry (Residual Provisions) Act 1993 (Vic), section 91A.
  67. Freedom of Information Act 1982 (Vic), section 5(2).
  68. Freedom of Information Act 1982 (Vic), section 5(2).
  69. Municipal Association of Victoria v The Victorian Civil and Administrative Tribunal [2004] VSC 146.
  70. Municipal Association of Victoria v The Victorian Civil and Administrative Tribunal [2004] VSC 146 [20-40].
  71. Municipal Association of Victoria v The Victorian Civil and Administrative Tribunal [2004] VSC 146.
  72. Municipal Association of Victoria v The Victorian Civil and Administrative Tribunal [2004] VSC 146 [20-40].
  73. Plant Biosecurity Act 2010 (Vic), section 66(2)(g).
  74. Corrections Act 1986 (Vic), section 8C.
  75. Plant Biosecurity Act 2010 (Vic), section 66(2)(g).
  76. Corrections Act 1986 (Vic), section 8C.
  77. Freedom of Information Act 1982 (Vic), section 17(3); Professional Standard 2.4 and 2.5.
  78. Freedom of Information Act 1982 (Vic), section 17(3); Professional Standard 2.4 and 2.5.

Download

FOI-Guidelines-Part-I-Preliminary.docx

FOI-Guidelines-Part-I-Preliminary.docx
Size 2.25 MB

Download
FOI-Guidelines-Part-I-Preliminary.pdf

FOI-Guidelines-Part-I-Preliminary.pdf
Size 776.41 KB

Download

Contents

Back to Index

Details

Last updated 19 May 2023

Back to top
Back to Top