If you have made a request to an agency or a Minister under the Freedom of Information Act 1982 (Vic) (the Act), and the agency or Minister refuses to grant you access to documents in accordance with your request, determines certain documents or information should not be released or refuses to amend personal information it holds about you, you may apply to Office of the Victorian Information Commissioner (OVIC) for an independent review of the decision. This guide provides an overview of OVIC’s review process.
The review process is kept as informal as possible. The agency or Minister must cooperate in the review process. We ask that you treat your Case Manager with courtesy and respect at all times.
Assessment and preliminary inquiries
Once we receive your application for review and assess that it is within our jurisdiction, we will notify the agency. We will ask the agency for a copy of any documents that are subject to review, a copy of your original request, and any other information we need.
After the agency provides us with copies of the documents, a summary of the background to your case will be prepared. We may need to contact the agency to clarify the exemptions they applied to the relevant documents, the range of documents involved, and any other issues.
Where possible OVIC will seek to resolve your review informally. If it cannot be resolved, your matter will be assigned to a Case Manager, who may contact you if they need further information from you.
Time to conduct the review
We will make every effort to progress your review as efficiently as possible. After receiving your application for review and conducting an initial assessment, we will provide you with an approximate date by which you can expect a formal decision.
The Act requires the Information Commissioner or Public Access Deputy Commissioner (the Commissioner) to complete their review of a decision within 30 days of receiving your application.
If after 30 days from the date of your application, your review has not been resolved informally and the Commissioner has not provided you with a formal decision on your review, you may apply directly to the Victorian Civil and Administrative Tribunal (VCAT) for a review, instead of waiting for the Commissioner’s decision. If you choose not to apply to VCAT, we will continue to progress your review until it is finalised.
The Act allows extensions to the 30 day period. We may seek your agreement to an extension of time beyond 30 days to finalise your review. If you agree to a longer period, you will only be able to seek a review by VCAT once that period has expired.
Delays in finalisation may be due to:
- the complexity of your case or the large number of documents involved;
- the time required to receive documents subject to review from the agency;
- the time required to communicate with or obtain information/responses from you or the agency; or
- the high volume of review requests submitted to OVIC.
The Act requires that we ensure you and the agency are provided with a fair, impartial and independent review process. This means we must give you and the agency a reasonably opportunity to provide us with relevant information and submissions to support your review application and the agency’s decision.
You may make a written submission to OVIC in support of your application for review. If you make a submission, it will be considered by your Case Manager and may assist in the informal resolution of your review. If the review cannot be resolved informally, the Commissioner will consider your submission in making a formal decision on your review, and may refer to your submission in the final decision.
Your written submission is your opportunity to provide more information about your request and why you disagree with the agency’s decision. Please let us know if any parts of your submission are confidential. We suggest you tell us in your written submission:
- whether you are dissatisfied with the agency’s decision to refuse access to a particular document, or a certain type of information in a document;
- why you are seeking access to the documents;
- why you believe the documents are not exempt and should be released to you – for example, whether you disagree with the agency’s description of the documents, or with what the agency says the likely impact of releasing certain information will be;
- whether you need information relating to the personal affairs of other individuals that may be in the documents, such as their names, phone numbers, email addresses, or other information from which they may be identified; or alternatively, whether you can provide us with those individuals’ written consent to release their information to you;
- whether you are willing to receive an edited copy of the documents, if the Commissioner determines that some information in the documents should be deleted because it is exempt or irrelevant to your request; and
- anything else you would like the Commissioner to consider as part of the review.
If your review relates to a request to amend information in a document relating to your personal affairs, we suggest you tell us, in your written submission:
- what evidence you can provide that the information you wish to have amended:
- is inaccurate: why is the information untrue or incorrect?
- is incomplete: what specific information is missing?
- is out of date: how have the circumstances changed?
- would give a misleading impression: who would be misled and why?
To assist us in conducting a timely review, please provide your submission by the requested date. If you cannot meet the request time frame, please contact your Case Manager.
You may send your submission by email to firstname.lastname@example.org.
Review and informal resolution
Your Case Manager will carefully review the documents subject to review, including any material the agency has not granted you access to, or refused to amend. They will also consider any written submissions that you or the agency have provided to us and make any further enquiries with you or the agency.
If the Case Manager considers it may be possible to reach an agreement between you and the agency, they will try to facilitate an informal resolution. If an agreement is reached, it may be put in writing so that you and the agency are clear on the outcome.
Commissioner’s preliminary view
Another approach that might be taken at this stage is for the Case Manager to consult with the Commissioner about your review. The Commissioner may form a ‘preliminary view’ of the likely outcome of the review. In instances where the likely outcome of the review is not to provide you with further information in the documents, we will advise you and provide you with an opportunity to respond. We will also provide you with the reasons for holding this view, and where possible, include website links to previous decisions made by the Commissioner similar to yours.
Having considered the Commissioner’s preliminary view, if you are satisfied the information you seek is exempt from release, you may decide to withdraw your review.
Alternatively, following our initial assessment or receiving the Commissioner’s preliminary view, we may obtain further information from the agency about its reasons for refusing access to some or all of the documents. The agency may decide to reconsider its original decision and make a fresh decision. If that happens, the agency will let you know of its intention to do so. An agency has 28 days to notify you of a fresh decision. You still have review rights at OVIC if you are dissatisfied with the agency’s new decision.
Information Commissioner’s decision
After the Case Manager has reviewed all the material thoroughly, and if your review has not been resolved informally, the Commissioner will make a formal decision. You will be given a Notice of Decision, which sets out the Commissioner’s decision and their reasons for the decision. This new decision replaces the agency’s original decision. For example, the Commissioner may agree with the agency’s original decision, or may grant you access to further documents, or parts of documents.
The Commissioner’s decisions are published on the OVIC and the Australasian Legal Information Institute websites. Before publishing a decision, we deidentify your name and other personal information to ensure your privacy.
If you or the agency are not satisfied with the Commissioner’s decision, you or the agency are entitled to apply to VCAT for review of that decision. You have up to 60 days from the date you receive the Notice of Decision to apply to VCAT for a review. An agency has 14 days to apply to VCAT for a review.
Where the Commissioner decides to grant you access to information relating to a third party, that third party is also entitled to appeal the decision to VCAT within 60 days.
The Commissioner’s decision on your review does not take effect until after all the relevant review periods noted above expire.
Disclaimer: The information in this document is general in nature and does not constitute legal advice.
Version: 1.0, October 2019