What is a document, and what is actual or constructive possession?
This practice note provides an overview of what is considered a ‘document’ under the Freedom of Information Act 1982 (Vic) (the Act) and when an agency or Minister is in possession of a document for the purpose of the Act. All legislative references are to the Act unless otherwise stated.
Under section 17, a person may request access to a document of an agency or an official document of a Minister. This right of access applies to a document which exists at the time the request is made. A request may be framed by reference to information that is contained in a particular document.
When a valid request is received, an agency must ensure a thorough and diligent search is undertaken for all documents falling within the scope of the request.1
The definition of a document
The definition of ‘document’ in section 5 is broad and captures any record of information in any form, and however stored, whether a draft or final version, physical or electronic.
Examples of documents include: emails, digital or electronic records (such as Word, PDF and Excel documents), diary and calendar entries, SMS and WhatsApp messages, CCTV footage, policy guides or manuals, letters, handwritten notes, file notes, sticky notes, files, photographs, telephone call or interview recordings and voice messages.
To the extent that a request is for information that is not available in a discrete form and an agency could produce it in a written form, section 19 requires an agency to produce a written document with the requested information. This is discussed later in this practice note.
In addition to a document in writing, section 5 defines ‘document’ as:
- any book, map, plan, graph or drawing; and
- any photograph; and
- any label marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever; and
- any disc, tape, soundtrack, or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
- any film negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and
- anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and
- any copy, reproduction or duplicate of anything referred to in paragraphs (a) to (f); and
- any part of a copy, reproduction or duplicate referred to in paragraph (g).
As noted in (g) and (h) above, a document includes any copy, reproduction or duplicate of a document, or any part of a copy, reproduction of a document.
This means that, where an applicant seeks access to documents containing particular information, all documents including drafts, hard copy and electronic versions with that information fall within the scope of their request, unless expressly excluded from the request.
Documents not in written form
Under section 19, an agency may be required to create a written document. This occurs where a request is for information that does not exist in a discrete form, and the agency can produce a written document by using a computer or other equipment that is ordinarily available to retrieve or collate the relevant information. The same will apply where the agency can make a transcript for a sound recording it holds.
Section 19 is not intended to apply to distinct documents that are only held in electronic form (such as emails, Word, PDF, or Excel files). Section 19 can only be used where an agency does not have a document which contains the information which is sought, but can produce a document that contains the requested information.
In the context of section 19, a request for information that is not in discrete form means a request for information in separate or divided locations (for example separate statistical information contained in different case management systems or different parts of a case management system). Other examples might include a document created from various spreadsheets or spreadsheet tabs, internet browsing history, extracts from a database compiled into a written document, making a transcript of a recorded interview or meeting, or a screenshot of a file structure in a computer drive.
A ‘document of an agency’
Section 5 provides a ‘document of an agency’ is a document in the possession of an agency, whether the agency created or received the document. The focus of the definition is ‘possession’ as opposed to ownership. It does not matter if a document was created by someone else, belongs to someone else or is stored electronically. If it is in the possession of the agency, it can be requested under the Act.
In the possession of an agency
A document is in the ‘possession’ of an agency, if the agency has:
- actual possession of the document – having physical possession and control of the document (for example, in the agency’s electronic document management system, on a shared drive, or in a hard copy complaint file); or
- constructive possession of the document – a legal right to obtain actual possession or power to deal with the document (for example, a contractual or legal right to require someone to provide a copy of the document to the agency).
Determining whether an agency is in possession of a document will depend on the facts and circumstances of each matter. 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 or request a copy of the document from a third party (for example another agency or contracted service provider); or
- the purpose for which the document was created and by who.
A document of the agency or a personal document
A document created by an agency officer in a personal capacity (or for personal reasons), and which the agency does not control, is not a document of that agency. This is, unless the agency officer created the document as part of, and for the purpose of, their duties at the agency.
For example, if an agency officer utilises a mobile phone for both personal and work functions, and a request is received for documents relating to a project the officer is involved with, the officer will be required to search and provide copies of text messages (from whatever messaging platform used) in so far as any text messages concern the specific project and were created for the purpose of the officer’s duties at the agency. In this example, relevant text messages might include arranging meetings with stakeholders or providing instructions to contractors or other agency officers in relation to the project.
An ‘official document of a Minister’
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. 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 to the document, so long as the document is not a document of an agency
A document in the possession of a Minister, which contains material unrelated to the affairs of an agency, such as in their capacity as a member of a political party, a parliamentarian or a personal diary, is not subject to the Act.
However, a document in the possession of a Minister (for example, a Minister’s diary) may contain information both subject to the Act or not subject to the Act. In such circumstances, the Minister will be required to search for and produce a copy of the requested document to ascertain its status under the Act.