Section 49A - Applications to Information Commissioner for review

Generally, Part VI outlines the powers of the Information Commissioner, the Public Access Deputy Commissioner and the Victorian Civil and Administrative Tribunal (VCAT) to review freedom of information (FOI) decisions made by agencies and Ministers.

An applicant may apply to the Office of the Victorian Information Commissioner (OVIC)⁸ to review:

• an agency or Minister’s decision to refuse to grant access to a document;⁹
• an agency or Minister’s decision to defer access to a document under section 24;¹⁰
• an agency or Minister’s decision not to waive or reduce an application fee under section 17 (it does not matter whether the application fee has been paid);¹¹ or
• an agency or Minister’s decision not to amend a document under section 39.¹²

OVIC cannot review an agency or Minister’s decision refusing to grant access to a document under section 29A (documents affecting national security, defence, or international relations).¹³ However, OVIC can review other, separate, documents in the same request which are not claimed to be exempt under section 29A.¹⁴

Legislation may exclude certain documents from the operation of the FOI Act (for example, under section 6AA, section 14, or under a different Act). In these circumstances, the FOI Act does not apply to the requested document.

Where an agency or a Minister makes a decision that the Act does not apply to a document, OVIC can look at whether the documents fall within the relevant exclusionary provision. This includes by requesting submissions from the agency or Minister as to how the documents fall within the relevant exclusionary provision and compelling the production of documents where necessary.

Where the documents fall within the exclusionary provision, that is the end of OVIC’s role.

Where the documents do not fall within the exclusionary provision, OVIC conducts a review with respect to those documents.¹⁶

OVIC cannot conduct a review, handle a complaint, or conduct an investigation regarding a:

• certificate signed by a Department Head or the Chief Commissioner of Police under section 29A(2); or
• question whether a document is, or whether a document including the information would be, of a kind referred to in section 29A(1), (1A) or (1B);
• decision to sign a certificate under section 29A(2).

However, an applicant may apply to VCAT under section 50(1)(e) to review a decision refusing access under section 29A.¹⁸

The kind of review that OVIC does is called a ‘merits review’. This means that OVIC reviews the merits of an agency or Minister’s decision and makes a fresh decision on the application as if it were making the decision for the first time.²²

In this process, OVIC ‘steps into the shoes’ of the primary decision-maker, and:

• considers the facts, law, and policy aspects of the original decision; and
• determines what is the correct and preferable decision.²³

‘Correct and preferable’ means that the reviewing body (OVIC) must make the correct decision according to law at the time of making a fresh decision. Where there are a range of possible correct decisions, the decision must also be the preferable one where it is ‘subject to the general constraints to which the administrative officer whose decision is under review was subject.’²⁴

OVIC can also consider additional information, including a submission provided by an applicant, agency or Minister, provided during the review and that may not have been available to the original decision-maker.

When OVIC reviews a decision of an agency or Minister, it may:

• make the same decision as the agency or Minister;
• make a different decision to the agency or Minister;
• dismiss the application for review; or
• if the applicant agrees, refer the decision back to the agency or Minister to make a fresh decision.²⁸

OVIC’s decision is a fresh decision and has the same effect as a decision of the agency or Minister.²⁹ This means that the agency or Minister must give effect to OVIC’s decision, unless an application to VCAT is made to review OVIC’s decision.³⁰