Section 26 - Decision to be made by authorized person
Extract of legislation
| 26 | Decision to be made by authorized person | |
| (1) | A decision in respect of a request made to an agency may be made, on behalf of the agency, by the responsible Minister or the principal officer of the agency or, by an officer of the agency acting within the scope of authority exercisable by him in accordance with arrangements approved by the responsible Minister or the principal officer of the agency. | |
| (2) | Where a request is made to an agency for a document, and no arrangements in respect of documents of that type have been made and published under the regulations, a decision on that request shall, for the purpose of enabling an application for review to be made to the Tribunal, be deemed to have been made by the principal officer of the agency. | |
Decisions made under Part III (requests for access to documents) and Part V (requests for amendment) must made by an authorised decision maker.2 Authorised decision makers include:
- the responsible Minister of the agency; or
- the principal officer of the agency; or
- other officers of the agency where the responsible Minister or principal officer of the agency approved arrangements for those officers to be authorised decision makers under the Act.
Example
The principal officer may approve arrangements for persons within the agency holding the job title ‘FOI Officer’ to be authorised persons under section 26(1).
Other officers under approved arrangements of the responsible Minister or principal officer
It is sufficient for the approved arrangements to identify officers of an agency by job title only. The approved arrangements do not require the officer to be personally named.
Holding the job title ‘FOI Officer’ does not automatically authorise the person to make decisions under the Act. An agency must ensure that the responsible Minister or principal officer has approved arrangements for FOI Officers to make decisions, if the agency intends for FOI Officers to be FOI decision makers.
If an officer is not authorised, they can still assist in processing a request for access or a request for amendment and communicate with the applicant during the processing of the request. However, only an authorised officer can make the decision.4
If a decision is made by a person who was not authorised under section 26(1), the agency and the person who made the decision cannot rely on the protections in the Act in relation to legal action and criminal and civil liability that may arise from a decision to grant access to a document under the Act.6
Section 26(2) preserves an applicant’s right to apply to the Victorian Civil and Administrative Tribunal for review of an agency or Minister’s decision, even where the decision maker was not an authorised person under section 26(1) or where no principal officer has been appointed.9
The reference to ‘published under the regulations’ in section 26(2) is a reference to the previous method for authorising decision makers when the Act first came into force.10
- Freedom of Information Act 1982 (Vic), section 26(1). For the purpose of this section, a reference to a ‘decision’ refers to a decision made under either Part III or Part V.
- Freedom of Information Act 1982 (Vic), section 26(1). For the purpose of this section, a reference to a ‘decision’ refers to a decision made under either Part III or Part V.
- Freedom of Information Act 1982 (Vic), section 26(1).
- Freedom of Information Act 1982 (Vic), section 26(1).
- Freedom of Information Act 1982 (Vic), sections 62 and 63.
- Freedom of Information Act 1982 (Vic), sections 62 and 63.
- Evans v Martin (County Court of Victoria, Rendit J, 27 July 1984) 20–21.
- See comments of Macnamara J in Luck v Victoria Police [2013] VCAT 206.
- Evans v Martin (County Court of Victoria, Rendit J, 27 July 1984) 20–21.
- See comments of Macnamara J in Luck v Victoria Police [2013] VCAT 206.
