Section 49H - Procedure on review
Extract of legislation
Relevant FOI Professional Standards
| Professional Standard 10.1
|
An agency must assist the Information Commissioner or Public Access Deputy Commissioner in their attempt to informally resolve a review or complaint. |
| Professional Standard 10.2
|
An agency must give consideration to a preliminary view issued by, or on behalf of, the Information Commissioner or Public Access Deputy Commissioner during a review. |
| Professional Standard 10.3
|
An agency must respond to a request for documents and information by, or on behalf of, the Information Commissioner or Public Access Deputy Commissioner within requested or agreed timeframes. |
| Professional Standard 10.4
|
When providing documents subject to review by the Information Commissioner or Public Access Deputy Commissioner, an agency must markup documents clearly and legibly to indicate exempt matter and the applicable exemption or exemptions.
Note: section 5 of the Act defines ‘exempt matter’ to mean matter the inclusion of which in a document causes the document to be an exempt document. |
The Office of the Victorian Information Commissioner’s (OVIC)9 review process is intended to be timely, efficient and fair. OVIC aims to conduct reviews with as little formality and technicality as possible.
OVIC provides for natural justice in relation to reviews.10 This means giving an applicant and the agency or Minister an opportunity to provide relevant information in relation to the review and to respond a preliminary view on a review application.
OVIC staff assist the Information Commissioner and the Public Access Deputy Commissioner in conducting a review prior to a Commissioner making an FOI review decision.11 This includes OVIC staff making preliminary inquiries with the applicant and the agency or Minister, reviewing documents subject to review, and providing advice in relation to review decisions.12 Following this work, OVIC staff generally make a recommendation to a Commissioner about a fresh decision to be made.
OVIC typically takes the following approach in handling reviews:
- Assess the review application and make preliminary inquiries – this includes asking the agency or Minister for a copy of the documents subject to review, a copy of the original request, and any other information OVIC may need to conduct the review.13
- Provide a reasonable opportunity to make submissions – OVIC must provide the applicant and the agency or Minister with a reasonable opportunity to provide relevant information to support the review.14
- Review and informal resolution – OVIC will review the documents subject to review and consider any written submissions the applicant or agency or Minister provided. OVIC may make further inquiries if it requires more information to progress the review. If OVIC considers if may be possible to reach an agreement between the applicant and the agency or Minister, OVIC will try to informally resolve the review (this may include reducing the number of documents subject to review).
- Preliminary view – a Commissioner may form a preliminary view on the likely outcome of the review and communicate this to the applicant and the agency or Minister. OVIC will provide an opportunity to respond to a preliminary view. This may result in an applicant withdrawing the review or the agency or Minister reconsidering its original decision and making a fresh decision.15
- Make a decision – if OVIC is not able to informally resolve a review, a Commissioner may make a formal decision on the review.16
When OVIC accepts a review, OVIC will request the agency or Minister to provide certain documents to assist OVIC to conduct the review.
Example
For example, OVIC may ask the agency or Minister to provide:
- a copy of the FOI request;
- a completed document transfer form;
- marked-up copies of the documents claimed to be exempt; and
- copies of any third-party consultation.
OVIC will generally ask agencies and Ministers to provide documents within five business days from the date that OVIC notifies the applicant and the agency or Minister that OVIC has accepted the review.
An agency and Minister should note the following when providing copies of documents subject to review:
- electronic copies of the documents must be provided, unless there are specific reasons not to do so;
- the documents must clearly indicate the exempt matter21 and which exemptions are claimed in each instance. This is typically done by highlighting or drawing boxes around the exempt matter, in such a way that it is still visible, but clearly distinguishable;22 and
- follow the instructions on the document transfer form that OVIC provides with the review acceptance letter.
In providing documents to OVIC for its review, an agency or Minister should not provide a redacted copy. OVIC needs to be able to see the information that has been claimed to be exempt in order to fulfil its review function.
Where an agency or Minister does not, or refuses to, provide documents to OVIC, the Information Commissioner can:
- issue a notice to produce or attend to require the agency or Minister to produce the documents;23
- make a finding that the agency has breached the Professional Standards;
- consider whether to investigate the conduct.24
More information
For more information on:
- OVIC’s use of coercive powers, see Part VIC – Coercive powers;
- how OVIC approaches compliance with the Professional Standards, see section 6W – Compliance with professional standards;
- how OVIC investigates matters, see Part VIB – Investigations.
OVIC may make preliminary inquiries and consult with the parties during a review.27 This helps OVIC to conduct a review in a timely, efficient, and fair way.
It also helps OVIC to:
- make sure it can review the decision, or to accept a review that is made outside the 28 day time limit;
- identify the core issues and try to informally resolve the review;
- see whether the review is still needed; and
- see whether a matter that came up through the review needs to be referred to another authority.28
OVIC must conduct a review in a timely, efficient and fair manner, with as little formality and technicality as possible.
OVIC will seek to informally resolve a review, where it is appropriate to do so.
OVIC considers each review application to decide whether it is possible to informally resolve the review or narrow the number of documents or information subject to review.
Informal resolution involves identifying what the applicant is seeking or trying to achieve with their FOI request, and talking with both the applicant and the agency or Minister to try and find a resolution that works for both parties.
Examples
Examples of how OVIC may try to informally resolve a review include:
Providing a preliminary view
OVIC may provide a Commissioner’s preliminary view on the review. This preliminary view may indicate whether the Commissioner thinks the document is exempt or not. OVIC will usually provide a similar published OVIC decision and / or OVIC guidance to support the view.
If OVIC provides a preliminary view, it will provide an opportunity for the person to respond to it and provide more information if needed.
Depending on the preliminary view, OVIC may also invite the applicant to withdraw their review. This might be, for example, where OVIC is likely to agree with the agency or Minister’s decision.
Narrowing the scope of the review
OVIC may identify whether there is specific information the applicant wants to access, and whether the applicant agrees to limit the review to that information. This can help to make the review quicker, because there is less information to review and helps to focus the review.
Assisting the applicant to access the document another way
If there is another way the applicant may access the same document or information, OVIC will try and provide that information to the applicant. For example, an applicant may be going through a court process, and they can subpoena the document.
A document may also be excluded from the operation of the Act because it is available for a fee through a different scheme.34 OVIC will usually try and provide information about how the applicant can access the document through that scheme.
Informally releasing documents
OVIC may invite an agency or Minister to provide access to a document informally, outside the Act.35
Making a fresh decision
OVIC may refer a decision back to an agency or Minister to reconsider.36
Similarly, an agency or Minister can reconsider its decision at any time during a review. If OVIC provides a preliminary view on a review and the agency or Minister agrees with it, the agency or Minister may decide to reconsider its decision and make a fresh one.37
Negotiating an agreement
OVIC may see whether a negotiated agreement would be appropriate. OVIC can facilitate a negotiated agreement between the applicant and the agency or Minister, and make a decision based on that agreement.38
Clarifying information in a document
OVIC may look at a document subject to review and let the applicant know if the specific information they want to access is in the document or not.
Positive outcomes of informal resolution include:
- the efficient resolution of a review with both parties agreeing with the outcome;
- narrowing the scope of a review and reducing the time required to finalise the review;
- an agency or Minister making a fresh decision or releasing more documents; and
- an applicant gaining a better understanding of the matter to which their request relates or receiving advice about other ways to obtain the information they seek.
OVIC must give both the applicant and the agency or Minister an opportunity to make a submission during a review.40
OVIC usually requests submissions when accepting a review, but OVIC may also ask for a submission at any time in the review process.
Submissions help OVIC to see whether a review can be informally resolved. If informal resolution is not appropriate, the submission helps OVIC to make a formal decision on the review. OVIC considers submissions when making decisions and will generally address relevant submissions in its notice of decision where it can, without disclosing exempt or sensitive information.
Applicants and agencies or Ministers can use submissions as an opportunity to provide evidence and/or expertise on a technical subject.
If a submission cannot be provided by the requested date, the person should contact OVIC as soon as practicable.
If either party to a review does not wish to make a submission, OVIC will make a decision on the information available.
Written submissions from an agency or Minister
An agency or Minister may make a written submission during a review. A submission can include more information on why and how the exemptions apply. The submission should further explain the decision, not merely restate the information contained in it. If any of the information in a submission is sensitive or confidential, this should be clearly indicated.
Submissions provide the agency or Minister with an opportunity to provide more information to OVIC than what was provided to the applicant in the original decision. For example, the agency or Minister can discuss exempt matter in a submission to OVIC.42
A submission should outline:
- a description of the exempt documents and how each limb of each exemption applies;
- an indication of whether the exemptions relate to part or the whole of each document;
- any detail or background information that would help provide context to the document/s;
- all material facts relied on to support the view the documents are exempt;
- the outcome of any third-party consultation undertaken;
- an explanation of why any required third-party consultation was not undertaken;
- additional documents/evidence in support of the decision, this could include, for example, copies of internal consultation or advice from technical experts within the agency; and
- any other matter the agency or Minister considers relevant.
Providing information about why the agency or Minister believes it is not practicable to edit documents
OVIC may ask an agency or Minister to explain why they believe it is not practicable to edit documents to remove exempt or irrelevant information from a document. OVIC may also confirm whether the agency or Minister consulted the applicant about whether they agreed to receive an edited copy of the document.
If an agency or Minister decides that certain information is not relevant to the request, OVIC may ask the agency or Minister to explain why.
An agency or Minister may remove exempt matter or irrelevant information from a document and provide a copy of the document to the applicant. For more information on editing a document, see section 25 – Deletion of exempt matter or irrelevant material.
Reviews of decisions made under section 25A
OVIC conducts reviews of decisions made under section 25A a little differently to how OVIC conducts reviews of other kinds of FOI decisions. This is because section 25A allows an agency or Minister to refuse a request without processing it or searching for documents. This means the agency or Minister does not have any documents subject to review to provide to OVIC.
Generally, when conducting a review of a decision made under section 25A, OVIC may:
There are two grounds for refusal in section 25A (section 25A(1) and section 25A(5)). The paragraphs below explain how OVIC approaches reviews involving each ground.
When conducting a review of a decision made under section 25A(1), which allows an agency or Minister to refuse to process a request because it would substantially and unreasonably divert the resources of the agency or interfere with the performance of the Minister’s functions, OVIC may ask the agency or Minister to provide information to show:
- how processing the request would substantially and unreasonably divert the resources of the agency or substantially and unreasonably interfere with the functions of the Minster; and
- whether the agency or Minister notified the applicant about their intention to refuse access and gave them a reasonable opportunity to consult to remove the grounds for refusal, before making the decision.
When conducting reviews of decisions made under section 25A(5), which allows an agency or Minister to refuse to process a request because it is clear from the nature of the requested documents that they are exempt, OVIC will ask an agency or Minister to provide information to explain:
- how the documents as described in the request would clearly be exempt; and
- why:
- the agency or Minister is not required to edit the documents (under section 25) to remove exempt or irrelevant information; or
- it is clear from the request, or because of consultation with the applicant, that the applicant does not want to receive edited copies of the documents with the exempt or irrelevant information removed.
During a review, an agency or Minister may reconsider their initial decision and make a fresh decision that a request be processed in the usual way under the Act.
For more information on when and how an agency or Minister may reconsider their original decision and make a new decision, see section 49M – Reconsideration at agency’s or Minister’s own initiative.
Written submissions from an applicant
Submissions allow an applicant the opportunity to provide more information about their request (including background information) which may not have been available to the agency or Minister when they made the original decision.
Where access to information or documents has been refused
If the review relates to a decision to refuse access to information or documents, an applicant’s written submission may include:
- whether the applicant is dissatisfied with the decision to refuse access to a particular document, or a certain type of information in a document;
- why the applicant is seeking access to the documents;
- why the applicant believes the documents are not exempt and should be released (for example, whether the applicant disagrees with the description of the documents, or with what the agency or Minister says the likely impact of releasing certain information will be);
- whether the applicant needs information relating to the personal affairs of other individuals that may be in the documents (such as third party names, phone numbers, email addresses, or other information from which they may be identified); or alternatively, whether the applicant can provide OVIC with those individuals’ written consent to release their information to the applicant;
- whether the applicant is willing to receive an edited copy of the documents, if a Commissioner decides that some information in the documents should be removed because it is exempt or not relevant to the request; and
- anything else the applicant would like OVIC to consider as part of the review.
Where a request to amend personal information is refused
If the review relates to a request to amend information in a document relating to an applicant’s personal affairs, a written submission should include evidence that the information to be amended:
- is inaccurate: explain why is the information untrue or incorrect?
- is incomplete: detail what specific information is missing?
- is out of date: explain how have the circumstances changed?
- would give a misleading impression:who would be misled and why?
- what evidence can be provided which supports the amendment request? For example:
- a document from a third party;
- a written account of the claimant’s version of events;
- a witness statement.
For more information on requesting an amendment to personal records, see section 39 – Person may request amendment of record.
OVIC must follow the rules of ‘natural justice’ (also known as procedural fairness) when conducting reviews. Natural justice refers to having a fair decision-making process.51 It consists of three rules: the hearing rule, the rule against bias, and the ‘no evidence’ rule:
- the hearing rule involves providing a person with a reasonable opportunity to put forward their case, with relevant information about any adverse material that the decision maker might take into account;52
- the rule against bias provides the right to have a decision made without bias from the decision maker (whether actual or apprehended bias);53
- the ‘no evidence’ rule requires a decision to be based upon logically probative evidence.54
For example, OVIC provides both the applicant and the agency or Minister with the opportunity to provide a written submission, and to put forward why they believe the documents should or should not be released. OVIC also makes its decision based on evidence, such as submissions from both the applicant and the agency or Minister and any other relevant material.
- 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 49H(3).
- Freedom of Information Act 1982 (Vic), section 49H(4).
- Freedom of Information Act 1982 (Vic), section 49H(4).
- OVIC may make preliminary inquiries under section 49K.
- Freedom of Information Act 1982 (Vic), section 49H(2).
- Freedom of Information Act 1982 (Vic), section 49M.
- Freedom of Information Act 1982 (Vic), section 49P.
- 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 49H(3).
- Freedom of Information Act 1982 (Vic), section 49H(4).
- Freedom of Information Act 1982 (Vic), section 49H(4).
- OVIC may make preliminary inquiries under section 49K.
- Freedom of Information Act 1982 (Vic), section 49H(2).
- Freedom of Information Act 1982 (Vic), section 49M.
- Freedom of Information Act 1982 (Vic), section 49P.
- ‘Exempt matter’ is defined in section 5(1) of the Act to be matter the inclusion of which in a document causes the document to be an exempt document.
- Professional Standard 10.4 requires agencies to markup documents clearly and legibly to indicate exempt matter and the applicable exemption or exemptions.
- Freedom of Information Act 1982 (Vic), section 49KB.
- Under Part VIB.
- ‘Exempt matter’ is defined in section 5(1) of the Act to be matter the inclusion of which in a document causes the document to be an exempt document.
- Professional Standard 10.4 requires agencies to markup documents clearly and legibly to indicate exempt matter and the applicable exemption or exemptions.
- Freedom of Information Act 1982 (Vic), section 49KB.
- Under Part VIB.
- Freedom of Information Act 1982 (Vic), section 49K.
- Freedom of Information Act 1982 (Vic), section 49O.
- Freedom of Information Act 1982 (Vic), section 49K.
- Freedom of Information Act 1982 (Vic), section 49O.
- See Freedom of Information Act 1982 (Vic), section 14 for more information about documents that are excluded from the operation of the Act.
- See Freedom of Information Act 1982 (Vic), section 16 for more information.
- Freedom of Information Act 1982 (Vic), sections 49L and 49MA.
- Freedom of Information Act 1982 (Vic), sections 49M and 49MA.
- Freedom of Information Act 1982 (Vic), section 49N.
- See Freedom of Information Act 1982 (Vic), section 14 for more information about documents that are excluded from the operation of the Act.
- See Freedom of Information Act 1982 (Vic), section 16 for more information.
- Freedom of Information Act 1982 (Vic), sections 49L and 49MA.
- Freedom of Information Act 1982 (Vic), sections 49M and 49MA.
- Freedom of Information Act 1982 (Vic), section 49N.
- Freedom of Information Act 1982 (Vic), section 49H(2).
- Freedom of Information Act 1982 (Vic), section 49H(2).
- OVIC can disclose the nature of an exempt document to an applicant, however OVIC cannot disclose the exempt matter itself: sections 63E(2) and 63E(3).
- OVIC can disclose the nature of an exempt document to an applicant, however OVIC cannot disclose the exempt matter itself: sections 63E(2) and 63E(3).
- While section 49OA(1) says OVIC cannot ask an agency or Minister to search for or otherwise identify documents relevant to the request, OVIC may give the agency or Minister a notice under section 49KA(2)(a) to process or identify a reasonable sample of relevant documents (section 49OA(2)).
- Under Freedom of Information Act 1982 (Vic), section 49KA(2)(a).
- While section 49OA(1) says OVIC cannot ask an agency or Minister to search for or otherwise identify documents relevant to the request, OVIC may give the agency or Minister a notice under section 49KA(2)(a) to process or identify a reasonable sample of relevant documents (section 49OA(2)).
- Under Freedom of Information Act 1982 (Vic), section 49KA(2)(a).
- Encyclopaedic Australian Legal Dictionary (online at 27 July 2023) ‘natural justice’ (def 1).
- Encyclopaedic Australian Legal Dictionary (online at 27 July 2023) ‘natural justice’ (def 1); Kioa v West (1985) 159 CLR 550.
- Encyclopaedic Australian Legal Dictionary (online at 27 July 2023) ‘natural justice’ (def 1); Ebner v Official Trustee in Bankruptcy (2000) 214 CLR 1.
- Lexis Nexis, Halsbury’s Laws of Australia (online at 27 July 2023) 10 Administrative Law, V Judicial Review, (3) Grounds of Review, ‘Natural Justice or Procedural Fairness’ [10-12630].
- Encyclopaedic Australian Legal Dictionary (online at 27 July 2023) ‘natural justice’ (def 1).
- Encyclopaedic Australian Legal Dictionary (online at 27 July 2023) ‘natural justice’ (def 1); Kioa v West (1985) 159 CLR 550.
- Encyclopaedic Australian Legal Dictionary (online at 27 July 2023) ‘natural justice’ (def 1); Ebner v Official Trustee in Bankruptcy (2000) 214 CLR 1.
- Lexis Nexis, Halsbury’s Laws of Australia (online at 27 July 2023) 10 Administrative Law, V Judicial Review, (3) Grounds of Review, ‘Natural Justice or Procedural Fairness’ [10-12630].
