Event recap: Information Access Series – Fresh decisions and amendment of personal records under the Freedom of Information Act 1982

On Wednesday 26 June 2019 OVIC staff explored two processes under the FOI Act: making a fresh decision and amending personal records, as part of the Information Access seminar series.

Making a fresh decision under section 49M of the FOI Act

During a review, section 49M of the FOI Act provides an agency with the opportunity to revoke its original decision, reconsider it, and make a fresh decision. The applicant needs to be provided with details of the new decision and must decide whether they are satisfied with the outcome or if they want to continue with the review.

A case study was presented on what to consider when making a fresh decision under section 49M.

Agency officers may consider making a fresh decision if:

• more documents have been discovered;
• there has been a change of circumstances that affects the original decision;
• the original exemptions are no longer relevant;
• they’ve been invited to reconsider their decision based on a preliminary view from the Information Commissioner or Public Access Deputy Commissioner; or
• there are additional exemptions that need to be applied.

The seminar took us through the process outlined under section 49M of the FOI Act – covering important considerations including how long you have to make a fresh decision and what you have to tell the applicant once you’ve made one.

Amending personal records under section 39 of the FOI Act

Another case study explored how to request an amendment of personal records under Part V of the FOI Act. The purpose of Part V is to ensure personal records relating to an individual do not unfairly represent that individual.

As such, individuals have a right to request an amendment to their personal records provided they can establish the records:

• contain the individual’s personal affairs information;
• have been released to that individual; and
• are inaccurate, incomplete, out of date or misleading.

Section 40 of the FOI Act prescribes the form for the application for amendment. Section 41 outlines how an agency may amend a record, by altering or adding an appropriate notation to the record. If the agency wishes to delete or expunge a record, they may only do so with the agreement of the Keeper of Public Records (section 49).

The seminar concluded with a helpful and illustrative case study – QXD v Monash Health (Review and Regulation) [2018] VCAT 997.

The session is available to stream on OVIC’s Periscope channel. You can also view the slides from the session here.

If you have any feedback on the seminar or want to propose a topic please contact OVIC training.