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Friday, July 30, 2010

Black letter law approach at Victoria's Planning Department

You would expect notes taken by an officer during a meeting between a planning minister and the proponent of a development would not record anything other than what was said during the meeting, certainly nothing of a personal nature about the note taker, and that there would be no question notes would be covered by the freedom of information act. If not there's a big hole in the legislative scheme.

So it appears, in Victoria, from a decision by the Victorian Department of Planning on a Freedom of Information decision reported by The Age (Meeting notes on Hotel Windsor redevelopment withheld) this week. It involved a black letter but questionable approach by the Department in dealing with an application for notes of a meeting between Minister Madden and the developer behind a controversial proposal: "No file notes were recorded. A personal note was made by one of the officers. However, this note only had personal meaning to that officer and was not used in any decision-making process. These kinds of personal notes do not meet the definition of a document of an agency under the FOI Act.''

The Victorian (and Commonwealth) FOI acts, Australia's first, going back to the early 80's, apply to a document held by an agency and both define the term in the same way, to mean a document in the possession of an agency whether created or received in the agency. Official guidance provided to Victorian government agencies makes no mention of circumstances when a document held by an individual officer may be a document of an agency, even where not incorporated in those systems. Regardless, asking the officer to hand it over would be a reasonable direction, thus giving rise to "constructive possession" or an immediate right of access to the notes by the department in any event.

The Commonwealth FOI Guidelines (Fundamental Principles 3.19) in addressing the issue of interpretation and application of the same words, clearly state that documents are to be taken to be documents of an agency if created by officers as a part of their duties.

Later FOI laws, for example those enacted in Queensland and NSW cleared up any doubt by providing explicitly that a document held by an agency encompasses a document in the possession or under the control of an officer in the officer's official capacity.The recent reform laws in both jurisdictions contain the same wording.

The Department of Planning approach wouldn't wash in these states, and would go against official guidance in the Commonwealth arena.

I'm not sure whether the issue has cropped up previously in the Victorian Civil and Administrative Tribunal, but there are some good grounds for challenge, and for legislative action if this proves necessary.

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