Skip to Content
From Monday 12 September 2020, OVIC's website will no longer be supported in Internet Explorer (IE).
We recommend installing Microsoft Edge, Google Chrome, Safari, Firefox, or Opera to visit the site.

Section 49J - Effect of delay by Information Commissioner in relation to requests

Guidelines

How long does OVIC have to conduct a review?

1.1

The Office of the Victorian Information Commissioner (OVIC)1 has 30 days from when OVIC receives an application for review, to complete a review.2 OVIC may extend this time with the applicant’s agreement, any number of times.3

1.2

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.4
1.3

The timeframe does not apply when OVIC is reviewing decisions of agencies or Ministers not to waive or reduce an application fee under section 17.5

1.4

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.

What happens if the review is not finished within the required time?

1.5

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.11 The Information Commissioner is not a party to a VCAT review.

1.6

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.

1.7

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.

1.8

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.12

1.9

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.13

  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 49J(3).
  3. Freedom of Information Act 1982 (Vic), section 49J(4).
  4. Freedom of Information Act 1982 (Vic), section 49J(1).
  5. McKechnie v Victorian Civil and Administrative Tribunal (2020) 62 VR 54.
  6. 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.
  7. Freedom of Information Act 1982 (Vic), section 49J(3).
  8. Freedom of Information Act 1982 (Vic), section 49J(4).
  9. Freedom of Information Act 1982 (Vic), section 49J(1).
  10. McKechnie v Victorian Civil and Administrative Tribunal (2020) 62 VR 54.
  11. 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.
  12. Freedom of Information Act 1982 (Vic), section 49G(1)(d).
  13. Freedom of Information Act 1982 (Vic), section 50(1)(b).
  14. 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.
  15. Freedom of Information Act 1982 (Vic), section 49G(1)(d).
  16. Freedom of Information Act 1982 (Vic), section 50(1)(b).

Download

FOI-Guidelines-Part-VI-Review-of-decisions.docx

FOI-Guidelines-Part-VI-Review-of-decisions.docx
Size 2.36 MB

Download
FOI-Guidelines-Part-VI-Review-of-decisions.pdf

FOI-Guidelines-Part-VI-Review-of-decisions.pdf
Size 2.36 MB

Download

Contents

Back to Index

Details

Last updated 18 January 2024

Back to top
Back to Top