The Victorian Civil and Administrative Tribunal ("VCAT") has confirmed in the case of Chopra v Victorian Institute of Teaching [2023] VCAT 341, that seeking a deposit on account of access charges has a direct impact on the timing of decision-making under the Freedom of Information Act 1982 (Vic) ("FOI Act").

When a valid request for access is received, an agency usually has 30 days to notify the applicant of a decision on the request (subject to any extension of time under s 21). If a decision is not made and notified to an applicant and the statutory time period expires, a refusal decision is taken to have been made by the agency and that decision is reviewable by VCAT.

What the VCAT decision makes clear is that once an agency issues a deposit notice under s 22(3) of the FOI Act, s 22(5) operates to suspend or reset to Day 0 the count of days after a valid request has been received. The 30 day statutory time period is suspended or reset to Day 0.

Once a deposit sought has been paid, the time is reset to Day 0 on the date of payment, so that the next day is Day 1 and the agency has 30 days to make and notify the decision to the applicant. VCAT made it clear that this was Parliament's intention apparent from reading the FOI Act as a whole, including s 22.

What this also means is that if a deposit which has been sought is never paid, time does not continue and the request is treated as if it has never been validly received. This means that time cannot pass without the deposit being paid and, therefore, a reviewable deemed refusal which would otherwise have arisen by the expiration of the 30 day time period cannot occur. Parliament cannot have intended that the applicant could choose to not pay the deposit, wait for 30 days and apply to VCAT for review of a deemed refusal.

"the clearly intended operation of 22(5), that once a deposit is requested, until it is paid the agency is not obliged to continue to respond to the request."

If an applicant is not happy with the amount of the charge, they have the option to either complain to the Information Commissioner, or seek review from VCAT of the calculation of the charge (provided the Information Commissioner first certifies the matter is of sufficient importance for the Tribunal to consider).

What does this mean for agencies?

This decision confirms that agencies should not readily dismiss the access charges provisions and fail to consider whether a deposit is payable. This is so bearing in mind that an agency is not required to provide access until the deposit is paid (s 20).

If a deposit is requested and never paid, the agency need not process the request.

Therefore, once it is apparent that an agency is required to process a request, they should always turn their minds to whether a deposit is payable, based on an estimate of access charges, before further processing a request. It may be that the agency might not have to process the request at all if a deposit is payable and never paid.

If you have any queries arising from this decision please feel free to contact us.

Important Update

Issue 1/2023 · 03 Apr 2023

In this issue