Section 49G - Information Commissioner may determine not to accept application or may dismiss review

The Office of the Victorian Information Commissioner (OVIC)¹⁰ may decide to not accept, or to dismiss, a review in certain circumstances.

This includes where:

• the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;¹¹
• the applicant has failed to co-operate with OVIC without reasonable excuse;¹²
• OVIC consider that the review would be more appropriately dealt with by the Victorian Civil and Administrative Tribunal (VCAT);¹³
• OVIC consider that a review is not appropriate in the circumstances;¹⁴
• OVIC is unable to contact the applicant following reasonable attempts to do so;¹⁵
• the applicant agrees in writing to the review being dismissed.¹⁶

OVIC considers each review application on a case-by-case basis.

If OVIC forms a preliminary view that the review application may be dismissed, OVIC will notify the applicant and ask for a written response from the applicant before making a final decision.

If OVIC decides to dismiss a review application, OVIC must notify the applicant and the agency or Minister, and set out the reasons for dismissing the review.¹⁷

If OVIC decides to not accept, or dismisses, an application for review, the applicant may apply to the Victorian Civil and Administrative Tribunal (VCAT) to review the agency or Minister’s decision to refuse access to a document.¹⁸

OVIC may decide to not accept, or dismiss, a review if the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith.

These terms are not defined in the Act. However, section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides some guidance. Section 75 allows VCAT to dismiss or strike out a proceeding if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance.²¹

VCAT will typically only strike out a proceeding if the proceeding is:

• hopeless or unsustainable in fact or in law;
• on no reasonable view can justify relief; or
• is bound to fail.²²

Similarly, OVIC will only dismiss an application for review under section 49G(1)(a) where the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith, where the application is hopeless or bound to fail.

An applicant must engage with the review process and respond to OVIC’s requests for information or documents within requested or agreed timeframes.

Where an applicant does not respond to OVIC or does not provide requested material in a timely manner, OVIC may decide to not accept or dismiss a review. This is unless the applicant has a reasonable excuse (for example, a medical issue or disability).

OVIC may not accept or may dismiss an application for review if the review would be more appropriately dealt with by VCAT.²⁴

Matters that may be more appropriately dealt with by VCAT may include where:

• an applicant has applied to VCAT for review of the same decision or similar documents;
• the law is not settled and OVIC is aware that VCAT is dealing with an application on the same or similar issue/s.

OVIC may decide to not accept or may dismiss a review when it is not appropriate in the circumstances.²⁶

This assessed done on a case-by-case basis and may include where the applicant has been provided with the documents subject to the review.

OVIC may not accept or may dismiss a review if OVIC cannot contact the applicant after making reasonable attempts to do so.²⁸

An applicant must engage with the review process and respond to OVIC’s requests for information or documents within requested or agreed timeframes.

If an applicant does not respond to OVIC, or does not provide requested information or materials to OVIC, in a timely manner, OVIC may dismiss their application for review after OVIC has made reasonable attempts to contact the applicant. This is unless the applicant has a reasonable excuse (for example, a medical issue or disability).

OVIC may dismiss a review where the applicant agrees to this in writing.³⁰ OVIC may seek an applicant’s consent to dismiss the review where, for example, the:

• review has been informally resolved; or
• a Commissioner provides a preliminary view to the applicant that no further documents will be released, and the applicant accepts this view and no longer seeks a review.