Important Update

Status of FOI Officers as decision-makers 

The Supreme Court of Victoria has today clarified the status of FOI Officers or any other person when making FOI decisions on behalf of an agency.  

 

Where they are properly authorised under s 26 of the Freedom of Information Act 1982 (Vic) ("FOI Act") to make decisions, they do not make decisions in their own capacity, but rather do so "on behalf of the agency".  The decision is, therefore, made by the agency.

 

In EFG (a pseudonym) v Coates (No.2) [2025] VSC 93, the applicant applied to amend what he asserted was personal affairs information in a document under Part V of the FOI Act.  The Victorian Institute of Teaching ("VIT"), acting through its FOI officer, Mr Coates, declined to entertain the request for amendment.  The applicant sought judicial review of that decision seeking a vast range of relief, against Mr Coates, the VIT and the Commission for Children and Young People ("Commission").  

 

The Court agreed with the submissions of Mr Coates and the VIT (with which the Commissioner agreed) that Mr Coates should be removed as a party to the proceeding.  It accepted that Mr Coates is not a proper or necessary party to the proceeding (Rule 9.06, Supreme Court (General Civil Procedure) Rules 2015) because:

  • none of the decision-making or conduct was done by Mr Coates in a personal capacity; it was all done in his capacity as an authorised agent of the VIT
  • s 26 of the FOI Act confers statutory power on the agency to authorise an employee, like Mr Coates, to act "on behalf of the agency" in making a decision on a request made under the FOI Act
  • where a person has that authority from the agency under s 26, and who exercises it in making a decision, the agency is fixed with all the legal consequences of everything that person decided on its behalf
  • the impugned conduct of Mr Coates only concerned him in his capacity as acting for the VIT and none of the relief sought engaged his interests so as to require him to be a party.

Accordingly, Mr Coates was removed as a party to the proceeding.

 

Take away points

  • this case emphasises the need for any decision maker under the FOI Act to be properly authorised under s 26 of the FOI Act
  • such authorisation should cover not just access decisions, but decisions to amend records under Part V of the FOI Act
  • any decisions made or action taken by a properly authorised officer is clearly done on behalf of the agency and not by the officer in an individual capacity

If you have any queries about how this may affect your agency, or you seek to have your authorisations for FOI decision makers reviewed or amended, please do not hesitate to contact us.

 

12 March 2025

Mick Batskos

Executive Director

 

Note: FOI Solutions is acting for the defendants in this proceeding.