Section 49B - Time for applying for review

Extract of legislation

49B	Time for applying for review
	(1)	Subject to this section, an application by a person to the Information Commissioner for review of a decision under this Division must be made within 28 days after the day on which notice in writing of the decision is given to the person.
	(2)	If the application for review relates to a decision to refuse to grant a person access to a document containing health information on the ground referred to in section 36 of the Health Records Act 2001, the application must be made within 70 days after the day on which notice in writing of the decision is given to the person.
	(3)	The Information Commissioner may accept an application for review made outside the period referred to in subsection (1) or (2) if satisfied that the application is made out of time because of an act or omission of the agency or Minister concerned.

Guidelines

How long does an applicant have to apply for a review by OVIC?

1.1

For a review application to be valid, it must:

be made within 28 days of receiving the decision;⁶
be in writing;
identify the relevant agency or Minister; and
identify the decision to be reviewed.⁷

1.2

‘Valid’ means the review application meets the requirements of the Act. The Office of the Victorian Information Commissioner (OVIC)⁸ cannot review an application that does not meet the requirements of the Act.

1.3

OVIC may accept an application for review outside of the 28 days if the delay was because of the agency or Minister who made the decision.⁹

Example

An agency’s decision does not tell the applicant about their right to seek a review by OVIC and does not tell the applicant that they have 28 days to apply for one.

OVIC may accept the review application out of time because the agency did not include information about how to apply for a review, including the 28 day time limit.

1.4

The Victorian Civil and Administrative Tribunal cannot review OVIC’s decision to accept or not to accept a request outside the time limit.¹⁰

1.5

If an applicant applies to OVIC for a review outside the 28 days, and OVIC cannot accept it out of time, the applicant may consider making another request made to the agency or Minister to receive fresh review rights.

More information

For information on the form of a review application, see:

section 49C – Form of application;
OVIC’s online review application form.

Freedom of Information Act 1982 (Vic), section 49B(1).
Freedom of Information Act 1982 (Vic), sections 49C(a) and 49C(b).
Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI reviews. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
Freedom of Information Act 1982 (Vic), section 49B(3).
Smeaton (Review and Regulation) [2015] VCAT 2022.
Freedom of Information Act 1982 (Vic), section 49B(1).
Freedom of Information Act 1982 (Vic), sections 49C(a) and 49C(b).
Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI reviews. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
Freedom of Information Act 1982 (Vic), section 49B(3).
Smeaton (Review and Regulation) [2015] VCAT 2022.

Section 49B - Time for applying for review

Extract of legislation

Guidelines

How long does an applicant have to apply for a review by OVIC?

Example

More information

Download

Contents

Details