Section 49J - Effect of delay by Information Commissioner in relation to requests
Extract of legislation
| 49J | Effect of delay by Information Commissioner in relation to requests | ||
| (1) | This section applies if the Information Commissioner— | ||
| (a) | has not, within the required period, completed the review of a decision of an agency or Minister referred to in section 49A(1)(a) or (b) or (2); and | ||
| (b) | has not, within the required period, made a determination under section 49G with respect to the application for review or the review. | ||
| (2) | At the end of the required period, the Information Commissioner is taken, for the purposes of an application to the Tribunal for review, to have made a decision— | ||
| (a) | refusing to grant access to the document in accordance with the request; or | ||
| (b) | deferring the provision of access to a document; or | ||
| (c) | not to amend the document pursuant to a request under section 39— | ||
| as the case requires. | |||
| (3) | In this section the required period is— | ||
| (a) | 30 days after the application for review by the Information Commissioner is received; or | ||
| (b) | if that period is extended or further extended, that period as extended. | ||
| (4) | The Information Commissioner may extend the period referred to in subsection (3)(a) by agreement in writing with the applicant, any number of times. | ||
| (5) | The period referred to in subsection (3)(a) cannot be extended or further extended under this section if that period has expired. | ||
This timeframe applies where OVIC is reviewing decisions of agencies or Ministers to:
- refuse to grant access to a document;
- defer access to a document; or
- refuse to amend a personal record.9
The timeframe does not apply when OVIC is reviewing decisions of agencies or Ministers not to waive or reduce an application fee under section 17.10
How long it takes OVIC to finalise a review depends on many factors, including the complexity and range of issues involved, the number of documents subject to review, any new matters raised during the review process, the time applicants and agencies or Ministers take to respond to requests, and the number and complexity of other review requests on hand at OVIC.
If a review is not completed within the 30 days (or longer as agreed by an applicant), the applicant may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the agency or Minister’s original decision. If this happens, the parties to the VCAT review are the applicant and the agency or Minister who made the original decision.14 The Information Commissioner is not a party to a VCAT review.
An applicant can apply to VCAT for a review of an agency or Minister’s original decision at any time if OVIC does not make a fresh decision within time.
OVIC will advise an applicant about their right to seek review by VCAT if OVIC is not able to complete its review within the required time.
If an applicant applies to VCAT for a review during OVIC’s review process, agencies and Ministers must inform OVIC once the agency or Minister is notified by VCAT of an application made for review. When OVIC receives a notice that an applicant has exercised their right to apply to VCAT before OVIC’s review process is completed, OVIC will dismiss the review application as it is not appropriate for OVIC to conduct a review where VCAT is also conducting a review.15
If an applicant does not apply to VCAT during OVIC’s review process, OVIC’s review continues until it is finalised by OVIC. After a review by OVIC, an applicant will still receive review rights to VCAT if OVIC makes a decision on the review.16
- 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.
- Freedom of Information Act 1982 (Vic), section 49J(3).
- Freedom of Information Act 1982 (Vic), section 49J(4).
- Freedom of Information Act 1982 (Vic), section 49J(1).
- McKechnie v Victorian Civil and Administrative Tribunal (2020) 62 VR 54.
- 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.
- Freedom of Information Act 1982 (Vic), section 49J(3).
- Freedom of Information Act 1982 (Vic), section 49J(4).
- Freedom of Information Act 1982 (Vic), section 49J(1).
- McKechnie v Victorian Civil and Administrative Tribunal (2020) 62 VR 54.
- While VCAT technically reviews OVIC’s ‘deemed refusal’ because OVIC did not make a decision with the required time, practically, VCAT reviews the original decision of the agency or Minister: Marke v Victoria Police FOI Division (Review and Regulation) [2018] VCAT 1320.
- Freedom of Information Act 1982 (Vic), section 49G(1)(d).
- Freedom of Information Act 1982 (Vic), section 50(1)(b).
- While VCAT technically reviews OVIC’s ‘deemed refusal’ because OVIC did not make a decision with the required time, practically, VCAT reviews the original decision of the agency or Minister: Marke v Victoria Police FOI Division (Review and Regulation) [2018] VCAT 1320.
- Freedom of Information Act 1982 (Vic), section 49G(1)(d).
- Freedom of Information Act 1982 (Vic), section 50(1)(b).
