Section 24A - Repeated requests

Section 24A places limits on the time and resources an agency or Minister spends on one applicant. If the conditions of section 24A(1) are met, an agency or Minister may:

• refuse to grant access to documents;
• refuse to amend a record under Part V;

without beginning to process the request, or at any later time.

The repeat requests exception is conditional and discretionary. It is only enlivened if the agency or Minister is satisfied the conditions in section 24A(1)(a)-(c) are met. It is discretionary in that an agency or Minister may still process the request, even if the conditions are met.

Section 24A was inserted into the Act to address an identified burden on agency resources that was affecting the administration and operation of the Act.²

If the elements of section 24A(1) are met, an agency or Minister may refuse the request before the agency or Minister begins processing it, or at any later time when processing the request.

• An agency or Minister may refuse to process a request, if the agency or Minister is satisfied that:
• the applicant has previously made a request to the agency or Minister, or a predecessor of the agency or Minister, for access to the same documents or to amend the same information;⁷
• the applicant’s request was refused by the agency or Minister;⁸
• the Victorian Civil and Administrative Tribunal (VCAT) confirmed the agency or Minister’s decision to refuse the request;⁹ and
• there are not reasonable grounds for the applicant making the request again.¹⁰

The request must be for the same documents or same information. The previous request does not have to be identical to the current request. It is still a request for access to the same documents, if the request is for a subset of the documents previously requested.¹²

However, an agency or Minister cannot refuse to process a repeat request if an applicant makes a request that is similar or related to earlier requests, but still covers ‘fresh ground’, in that it does not request access to the ‘same’ documents.

VCAT must have confirmed the decision. VCAT has held that the term ‘confirmed the decision’ refers to ‘a previous FOI request where a primary decision was confirmed (in the sense of finalised or concluded) by a VCAT decision which determined the issues in dispute between the parties.¹⁶

VCAT does not need to have made an identical decision to the primary decision for an agency or Minister to use the power.¹⁷ VCAT commented that if section 24A could only be used where VCAT makes a decision identical to the primary decision, this would prevent section 24A being used to address the issues the section was inserted into the Act to address, namely applicants lodging appeals on identical matters. VCAT found that such a result could not have been intended by Parliament.¹⁸

Where an agency or Minister’s decision to refuse access to documents has not been the subject of review before a Tribunal, an agency or Minister cannot refuse to process the request under section 24A.

For an example of what can be taken into account when considering whether an applicant has reasonable grounds to make the request again, see the decision in Smeaton v Victorian WorkCover Authority [2015] VCAT 1597.

If an agency or Minister decides to refuse to process the applicant’s request under section 24A, the agency or Minister must tell the applicant of their right to apply to the Office of the Victorian Information Commissioner for review of the agency or Minister’s decision within 28 days of receiving the notice of decision.²⁰

An agency or Minister’s decision must also otherwise meet the requirements of section 27.