Important FOI decision by Victorian Supreme Court
All agencies will be affected
The Supreme Court of Victoria recently handed down a landmark decision providing clarity on the meaning of “document” in the Freedom of Information Act 1982 (Vic) (“FOI Act”). This will have an impact on a number of important aspects of the FOI Act.
The case involved an appeal from a decision of the Victorian Civil and Administrative Tribunal in relation to the calculation of access charges for electronically stored material like emails and material held in .pdf form. It considered when s 19 of the FOI Act required production of a written document using an agency’s computers and what access charges would be applicable under the Freedom of Information (Access Charges) Regulations 2014 (“Regulations”).
Although the case was about access charges, it dealt with the broader concept of what is a “document” under the FOI Act and so there could be wide-ranging ramifications for agencies.
In Monash University v EBT [2022] VSC 651, the Supreme Court concluded that a thing is a “document” of an agency if it is a record of information and is kept by or on behalf of an agency, regardless of the way in which the thing is stored. This means that any distinct or discrete records of information stored electronically or digitally are “documents” for all purposes of the FOI Act.
Emails, notes, summaries and reports, even if created or sent in electronic or digital form, undoubtedly constituted, at the moment of its creation or receipt by an agency, a document of the agency within the meaning of the FOI Act. It does not cease to be such a document just because the agency chooses to store it in electronic or digital form only.
What does this mean for agencies
As the emphasis on electronic recordkeeping increases, this case has direct implications for all agencies when considering things like:
- what access charges are applicable to documents stored electronically (like emails, documents “saved” to .pdf, scanned documents, etc);
- which Items in the Schedule to the Regulations, setting out different access charges, will apply in particular circumstances;
- will s 19 have a role to play to require an agency to generate a written document and, if so, when, and does it have to be on paper;
- forms of access to documents.
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