Supreme Court rules on deposit notices

The Supreme Court of Victoria today made a landmark ruling confirming the legal effect of deposit notices within the access charges regime in the Freedom of Information Act 1982 (Vic) (“FOI Act”). We acted for the successful respondent in the case: Chopra v Victorian Institute of Teaching [2025] VSC 815.

In upholding a previous decision of the Victorian Civil and Administrative Tribunal (“VCAT”) (Chopra v Victorian Institute of Teaching [2023] VCAT 341), the Court confirmed the following:

Where a deposit notice is correctly drafted it engages s 22(5) of the FOI Act.
The natural meaning of s 22(5) is that for the purposes of calculating the due date under s 21 of the FOI Act for notification of a decision, a request is deemed to have been received by an agency on the day the deposit sought has been paid.
This means that the time for an agency to notify an applicant of a decision on a request is not later than 30 days after payment of the deposit.
If a deposit is not paid, the request need not be processed.
A deposit notice serves a number of functions:
- it provides relevant information to allow an applicant to consider whether to proceed with the request
- it puts in place arrangements for payment of a deposit before an agency is required to do work in response to a request that ultimately may not be necessary – if the deposit is not paid, the request need not be processed
- it sets up an opportunity for the applicant and agency to discuss ways of reducing the charge by altering the request or extending the time for the agency to comply.
If an applicant is dissatisfied with the amount of the charge they could either complain to the Information Commissioner, or seek review from VCAT but only if the Commissioner first certifies the matter is of sufficient importance for the VCAT to consider.

Other interesting points

Bearing in mind that the form of access sought by an applicant can have a bearing on the access charges payable, the Court made some other interesting points of note:

An applicant can request access in any of the forms set out in s 23 of the FOI Act.
If so, they cannot be charged more for access than could apply to that form of access.
Seeking access in electronic format is NOT one of the forms of access provided for by s 23.
Control of costs or charges under the FOI Act is achieved in a number of ways:
- giving an applicant the choice as to the form of access they seek (being one of the forms in s 23)
- requiring an agency to give an applicant notice of its opinion that the charge for access to documents will exceed the prescribed amount (now $70) and the opportunity to discuss with the agency practicable alternatives for altering the request or reducing the anticipated charge (eg reduce the charge by agreement if the applicant agrees the need to comply with the 30 day time limit for processing in s 21)
- by a process of complaint to the Information Commissioner to resolve issues between applicants and agencies in relation to issues about requests for access.

Take away points

It is crucial that deposit notices are correctly drafted in a manner that complies with s 22 requirements.
It is important in all cases to estimate access charges to see if a deposit is payable. If it is, no steps need to be taken to process the request and make a decision unless the deposit is paid.
Deposits can be a legitimate tool agencies can use to manage workflows and should be considered in respect of every request given the potential to avoid unnecessary work if applicants do not pay deposits sought.
Of course, this requires agencies to be familiar with what can and cannot be charged for in dealing with FOI requests.

If you need advice about what this decision means about your agency and how it deals with FOI requests, please do not hesitate to contact us: info@foisolutions.com.au