Victorian Supreme Court rules on validity requirements of FOI requests

The Supreme Court of Victoria has recently made a very important ruling about the legal effect of the validity requirements in s 17 of the Victorian Freedom of Information Act 1982 (“FOI Act”). This was in the decision of McKechine v Victorian Civil and Administrative Tribunal & Anor [2020] VSC 454 (“McKechnie”).

The Court confirmed that where a request does not comply with the requirements in s 17, it is appropriate to describe the request as invalid. This is because the consequences of non-compliance with s 17 is that the request will generate no right to obtain access, and does not give rise to an obligation on an agency to grant access.

Where a validity requirement such as those in s 17 are not complied with, such “procedural problems are not minor or merely technical.”

Observations about the application fee and hardship

The Supreme Court confirmed that an FOI request does not have to be processed unless and until the application fee is either paid (including a reduced fee) or waived. The application fee can be waived or reduced on the grounds payment would cause the applicant hardship.

Hardship is to be assessed by the relevant agency at first instance or by the Information Commissioner on review. It is not something than is to be assessed objectively by VCAT or the Court. This is because the discretion is wholly place on the agency at first instance in s 17(2B) and Commissioner on review (s 49A(1)(c)).

The Court recognised that the word “hardship” has not fixed legal meaning and the statutory context in which it is used will, as always, be important. Except where the context otherwise indicates, “hardship” is not confined to financial hardship (in the sense of financial poverty). Under s 17(2B), the assessment of hardship involves a question of fact and degree and a value judgement on which reasonable minds may legitimately differ. The assessment needs to be done in respect of each FOI request individually.

The Court also pointed out an obvious matter, which is that s 17(2B) provides not just for waiver of a fee, but also for a reduction of the application fee. Therefore, any hardship found could be responded to by way of a reduction as distinct from a waiver.

Finally, the Court reminds us that even if the relevant agency or the Information Commissioner finds hardship, a discretion would usually still remain to not waive, not reduce, or not reduce to a particular extent. The objects clause in s 3 of the FOI Act about allowing for access at the lowest reasonable cost does not negate that discretion completely, although failure to do so would probably be rare.

It is totally appropriate and not unreasonable for an agency to require an applicant to provide evidence or information in support of the claim for a fee waiver or reduction. The onus is not on the agency to prove there should not be waiver; it is up to the applicant to provide sufficient evidence or information for the exercise of the discretion by the agency.

Without an actual waiver under s 17(2B), non-payment of the fee will generally mean that the section requiring that a request must be accompanied by a fee of two fee units will not have been complied with. This means that no right to obtain access to documents under the FOI Act will have arisen. This is because the right of access in s 13 must be exercised “in accordance with this Act”, which includes complying with s 17.

Observations about lack of clarity

Section 17(2) requires a request to provide such information as is reasonably necessary to enable a responsible officer of the agency to identify the requested document. This is not an objective test; the agency’s procedures and the state of its files will often be significant.

Other matters

Another interesting statement made by the Court includes that post-enactment ministerial or departmental understandings of statutes, such as in internal policies, do not bear on the proper interpretation of the Act. This could apply to agency policies and might extend to practice notes made by the Office of the Information Commissioner. For example, an agency’s policy of what might be considered as satisfactory to prove “hardship” is not binding on that agency.

If you require advice on what this Supreme Court decision means for your agency, please do not hesitate to contact us.

Important Update

Issue 9 copy · 31 Aug 2020

In this issue