NUMBER OF REVIEWS RECEIVED
If an applicant is not satisfied with an agency’s decision, they may apply to the Information Commissioner for review of that decision. Before OVIC was established, between December 2012 and September 2017, this right of review was to the Freedom of Information Commissioner.
If an applicant is not satisfied with a decision made by the Information Commissioner, they may seek review by VCAT.1
A small number of applicants seek external review by OVIC and/or VCAT, compared with the total number of decisions made every year.
In 2018-19, the number of reviews received by OVIC represented 1.8% of FOI decisions made by agencies that year. This figure is even smaller for VCAT; the number of reviews received by VCAT in 2018-19 represented 0.36% of FOI decisions made by agencies that year.
From 2014 to 2019, the number of review applications OVIC received increased from 417 in 2014 to 607 in 2019, despite a small (4.78%) decrease from 2017-18 to 2018-19 (Table 11).
From 2014 to 2019, the number of review applications received by VCAT increased from 74 in 2014-15 to 123 in 2018-19. However, the number of review applications VCAT received in this time fluctuated, from the highest in 2017-18 (140) to the lowest in 2015-16 (72) (Table 11).
This trend of increasing external review applications made to OVIC and VCAT may be due to:
- the overall increase in the number of FOI requests received, and FOI decisions made, which enlivens review rights to OVIC and VCAT;
- greater public awareness of independent avenues of appeal;
- increased media coverage of FOI; and
- a decrease in original FOI decisions made by agencies granting access to requests in full.
Table 11: Number of review applications received by OVIC and VCAT from 2014 to 2019
| 2014-15 | 2015-16 | 2016-17 | 2017-18 | 2018-19 | |
| Number of reviews received by OVIC | 417 | 428 | 574 | 636 | 607 |
| Number of reviews received by VCAT | 74 | 72 | 91 | 140 | 123 |
REVIEW OUTCOMES WHERE A FORMAL DECISION IS MADE
When the Information Commissioner makes a review decision, and the decision differs to the agency’s decision, the review decision may involve:
- releasing all or additional documents or information to an applicant;
- determining not all exemptions relied on in the original decision applied or were necessary;
- determining the processing of the FOI request by an agency would not substantially and unreasonably divert the resources of that agency (section 25A(1)); or
- determining it was not apparent from the terms of the FOI request that all documents would be exempt (section 25A(5)).
From 2014-15 to 2016-17, the percentage of review decisions that agreed with the agency’s decision increased from 56.88% to 66.83% respectively (Table 12). This trend changed in 2017-18, when the inaugural Information Commissioner was appointed. From 2017-18 to 2018-19, the percentage of review decisions that agreed with the agency’s decision decreased, and decisions that differed from the original decision increased.
This indicates OVIC’s decisions are resulting in the release of further information in documents to applicants on review, more often. More complete access to documents reflects OVIC’s commitment to upholding the object of the FOI Act and ensuring the fair disclosure of government information.
Table 12: FOIC/OVIC review outcomes where a formal decision is made from 2014 to 2019
| 2014-15 | 2015-16 | 2016-17 | 2017-18 | 2018-19 | |
| Decisions same | 124 | 135 | 139 | 123 | 213 |
| % Same | 56.88% | 59.47% | 66.83% | 51.25% | 50.24% |
| Decisions differed | 94 | 92 | 69 | 117 | 211 |
| % Differed | 43.12% | 40.53% | 33.17% | 48.75% | 49.76% |
| Number of decisions made | 218 | 227 | 208 | 240 | 424 |
Between 2014 and 2019, in most matters where VCAT made a formal review decision, VCAT affirmed (upheld) the original decision in full (Table 13). This fluctuated between 2014 and 2019, with the highest percentage of decisions affirmed in full in 2016-17 (92.00%) and the lowest in 2015-16 (60.87%).
Table 13: VCAT review outcomes where a formal decision is made from 2014 to 2019
| wdt_ID | Year | 2014-15 | 2015-16 | 2016-17 | 2017-18 | 2018-19 |
|---|---|---|---|---|---|---|
| 1 | Decisions affirmed in full | 23 | 14 | 23 | 25 | 20 |
| 2 | % affirmed in full | 71.88% | 60.87% | 92.00% | 83.33% | 71.43% |
| 3 | Decisions varied | 5 | 7 | 2 | 5 | 5 |
| 4 | % varied | 15.63% | 30.43% | 8.00% | 16.67% | 17.86% |
| 5 | Decisions overturned | 4 | 2 | 0 | 0 | 3 |
| 6 | % overturned | 12.50% | 8.70% | 0.00% | 0.00% | 10.71% |
| 7 | No. of decisions made | 32 | 23 | 25 | 30 | 28 |
- In some instances, an applicant may seek review by VCAT directly, without seeking review by the Information Commissioner first. For example, under section 50(1)(e), an applicant may apply to VCAT for a review of a decision made by an agency or Minister refusing to grant access to a document that is claimed to be exempt under section 29A of the FOI Act.