Section 49OA - Review of decisions under section 25A(5)
Extract of legislation
| 49OA | Review of decisions under section 25A(5) | |
| (1) | In conducting a review of a decision of an agency or Minister under section 25A(5) to refuse to grant a request for access to documents, the Information Commissioner must determine whether to refuse to grant the request under section 25A(5) without requesting the agency or Minister to search for or otherwise identify the documents to which the request relates. | |
| (2) | Nothing in subsection (1) prevents the Information Commissioner giving a notice under section 49KA(2)(a). | |
Section 25A(5) allows an agency or Minister to make a decision based on the terms of the request, without searching for any relevant documents. Broadly, this is where the documents are obviously exempt, and an edited copy of the document cannot be provided.
If an agency or Minister makes a decision under section 25A(5), they have usually not searched for, or located any, documents.
When the Office of the Victoria Information Commissioner (OVIC)2 reviews a section 25A(5) decision, OVIC generally makes a decision in the same way as the agency or Minister (without the documents). OVIC will closely consider the nature of the documents requested and the terms of the request, to ensure both of the elements in section 25A(5) are satisfied.
OVIC will also consider whether:
- third party information is likely to be in the documents;
- it would be practicable to consult with those third parties about disclosing their information to the applicant; and
- their consent to disclosure would likely mean the documents would not be obviously exempt.
Processing or identifying a reasonable sample of documents
During a review, OVIC may require an agency or Minister to process or identify a reasonable sample of documents that are relevant to the request, even where the agency or Minister has made a decision under section 25A(5).4
More information
For more information on when OVIC can require an agency or Minister to process or identify a reasonable sample of documents, see section 49KA – Power to require further search for documents.
- 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.
- 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), sections 49OA(2) and 49KA(2)(a).
- Freedom of Information Act 1982 (Vic), sections 49OA(2) and 49KA(2)(a).
