Practice Note 5: Constructive Possession of Documents
Summary
An applicant's right of access to documents of an agency is determined by whether documents are in the possession of an agency.
A document is in the possession of an agency if it is in the actual physical possession of an agency.
Possession also arises if the document is in the "constructive" possession of the agency. (Constructive possession exists where the agency has a right and power to deal with or control the documents.)
Whether constructive possession exists depends on each case.
1Note: references in this Practice Note to sections are references to sections of the Freedom of Information Act 1982 (Vic) ("FOI Act") unless otherwise stated.
- What documents are accessible under the FOI Act?
- When is a document in the possession of an agency?
- When is a document in the "constructive possession" of an agency?
- How do I determine if a document is in the "constructive possession" of an agency?
- What should agencies do when outsourcing functions?
1. What documents are accessible under the FOI Act?
Under section 13 of the Freedom of Information Act 1982 (FOI Act), a general right of access is created enabling every person to obtain access in accordance with the procedures in the FOI Act to a document of an agency other than an exempt document (or an official document of a Minister other than an exempt document).
The term "document of an agency" is defined in section 5 to mean a document in the possession of an agency whether created in the agency or received in the agency. The focus is on "possession" and not ownership - it does not matter that the document was created by or belongs to someone else2. If it is in the possession of an agency, it can be accessed under the FOI Act unless exempt or excepted (e.g. a public record or library material).
2 Except to the extent that fact is relevant to determining whether or not to transfer the request for the document (section 18).
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2. When is a document in the possession of an agency?
A document may be in the possession of an agency if:
- it is in the physical custody or actual possession of the agency, e.g. it may exist in a filing cabinet of the agency or on a computer system or electronic storage device of the agency; or
- it is in the "constructive possession" of the agency (see item 3 below).
Whether or not a document is in the possession of an agency must be determined at the time the request for access is received by the agency.
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3. When is a document in the "constructive possession" of an agency?
Constructive possession occurs when an agency has a right to immediate possession or a right and power to deal with the document (e.g. the right to require someone to deliver up the document to the agency). Therefore documents in the control of an agency are documents of an agency. The exercise of control can arise in the sense of actual power to deal with the document by restraint or direction.
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4. How do I determine if a document is in the "constructive possession" of an agency?
Constructive possession will depend on the facts in each case. It can be apparent from the contractual terms that govern the relationship between an agency and the third party which has physical custody of documents. For example, it is a common contractual provision to provide that any documents generated by a contractor in performing the contract with an agency remain the property of that agency or at least provide that the agency may require the contractor to deliver the documents up to the agency.
However, it may not be necessary for there to be express contractual provisions for there to exist, at common law, a right for an agency to require a service provider or agent to deliver up documents relating to that relationship. This can give rise to complex legal issues. Advice specific to any particular case may need to be obtained.
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5. What should agencies do when outsourcing functions?
Government agencies today carry out their functions in a wide variety of ways. These include having functions which had traditionally been performed by the public sector outsourced, at least in part, to the private sector (e.g. payroll activities). It is desirable that the outsourcing of these functions does not change the rights of an individual to seek access to documents. It is therefore recommended that, where government agencies engage non-government entities to carry out functions prescribed by statute, they ensure the contract terms give the agency a right of access to documents produced in the course of performing those functions. The Victorian Ombudsman recommended this approach be adopted in the 2006 review of FOI and noted that in this way, FOI access should be available as if the function was being performed directly by the agency.
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