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

Guidelines

When can OVIC not accept or dismiss a review?

1.1

The Office of the Victorian Information Commissioner (OVIC)1 may decide to not accept, or to dismiss, a review in certain circumstances.

1.2

This includes where:

  • the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;2
  • the applicant has failed to co-operate with OVIC without reasonable excuse;3
  • OVIC consider that the review would be more appropriately dealt with by the Victorian Civil and Administrative Tribunal (VCAT);4
  • OVIC consider that a review is not appropriate in the circumstances;5
  • OVIC is unable to contact the applicant following reasonable attempts to do so;6
  • the applicant agrees in writing to the review being dismissed.7
1.3

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

1.4

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.

1.5

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.8

1.6

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.9

For more information on reviews by VCAT, see section 50 – Applications for review by Tribunal.

Frivolous, vexatious, misconceived, lacking in substance or not made in good faith

1.7

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.

1.8

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.19

1.9

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.20
1.10

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.

Failing to cooperate without a reasonable excuse

1.11

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

1.12

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).

When may a matter be more appropriately dealt with by VCAT?

1.13

OVIC may not accept or may dismiss an application for review if the review would be more appropriately dealt with by VCAT.23

1.14

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.

When will a review not be appropriate in the circumstances?

1.15

OVIC may decide to not accept or may dismiss a review when it is not appropriate in the circumstances.25

1.16

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.

Reasonable attempts to contact an applicant

1.17

OVIC may not accept or may dismiss a review if OVIC cannot contact the applicant after making reasonable attempts to do so.27

1.18

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

1.19

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).

Applicant agrees in writing

1.20

OVIC may dismiss a review where the applicant agrees to this in writing.29 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.
  1. Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI reviews. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
  2. Freedom of Information Act 1982 (Vic), section 49G(1)(a).
  3. Freedom of Information Act 1982 (Vic), section 49G(1)(b).
  4. Freedom of Information Act 1982 (Vic), section 49G(1)(c).
  5. Freedom of Information Act 1982 (Vic), section 49G(1)(d).
  6. Freedom of Information Act 1982 (Vic), section 49G(1)(e).
  7. Freedom of Information Act 1982 (Vic), section 49G(2).
  8. Freedom of Information Act 1982 (Vic), sections 49G(3) and 49G(4).
  9. Freedom of Information Act 1982 (Vic), sections 49G(1) and 50(1)(d).
  10. Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI reviews. In this section, the FOI Guidelines collectively refer to the Information Commissioner, the Public Access Deputy Commissioner, and OVIC staff as ‘OVIC’ unless otherwise stated.
  11. Freedom of Information Act 1982 (Vic), section 49G(1)(a).
  12. Freedom of Information Act 1982 (Vic), section 49G(1)(b).
  13. Freedom of Information Act 1982 (Vic), section 49G(1)(c).
  14. Freedom of Information Act 1982 (Vic), section 49G(1)(d).
  15. Freedom of Information Act 1982 (Vic), section 49G(1)(e).
  16. Freedom of Information Act 1982 (Vic), section 49G(2).
  17. Freedom of Information Act 1982 (Vic), sections 49G(3) and 49G(4).
  18. Freedom of Information Act 1982 (Vic), sections 49G(1) and 50(1)(d).
  19. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 75(1)(a).
  20. Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065.
  21. Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 75(1)(a).
  22. Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065.
  23. Freedom of Information Act 1982 (Vic), section 49G(1)(c).
  24. Freedom of Information Act 1982 (Vic), section 49G(1)(c).
  25. Freedom of Information Act 1982 (Vic), section 49G(1)(d).
  26. Freedom of Information Act 1982 (Vic), section 49G(1)(d).
  27. Freedom of Information Act 1982 (Vic), section 49G(1)(e).
  28. Freedom of Information Act 1982 (Vic), section 49G(1)(e).
  29. Freedom of Information Act 1982 (Vic), section 49G(2).
  30. Freedom of Information Act 1982 (Vic), section 49G(2).

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Last updated 18 January 2024

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