Section 49L - Referral back to agency or Minister for reconsideration

Extract of legislation

49L	Referral back to agency or Minister for reconsideration
	(1)	This section applies if —
		(a)	the Information Commissioner has done any of the following—
			(i)	made preliminary inquiries under section 49K;
			(ii)	required an agency or Minister to conduct a sampling search under section 49KA(2)(a), or a further search under section 49KA(2)(b);
			(iii)	issued a notice to produce or attend; and
		(b)	it appears to the Information Commissioner reasonably likely that the agency or Minister will be able to make a fresh decision in a way that is satisfactory to the applicant and in accordance with law.
	(1A)	The Information Commissioner, with the agreement of the applicant, may refer the matter that is the subject of the application back to the agency or Minister for reconsideration in accordance with this section.
	(2)	The fresh decision must be made within 28 days after the referral under subsection (1) unless the agency and the Information Commissioner agree in writing to another period.
	(3)	The required period for completing the review under section 49J is suspended from the time the Information Commissioner refers the matter back to the agency under subsection (1).
	(4)	The agency must notify the Information Commissioner within 3 business days after the end of the period referred to in subsection (2) that—
		(a)	a fresh decision has been made; or
		(b)	a fresh decision has not been made.
	(5)	If the agency makes a fresh decision, the agency must—
		(a)	revoke the earlier decision; and
		(b)	inform the applicant, when notifying them of the fresh decision, of the requirements of subsection (6) and the effect of subsection (7).
	(6)	Within 28 days after being notified of the fresh decision by the agency, the applicant must advise the Information Commissioner in writing whether the applicant agrees or does not agree with the decision.
	(7)	If the applicant fails to advise the Information Commissioner under subsection (6) within the period specified in that subsection, the applicant is taken to agree with the fresh decision.

Guidelines

Referring a decision back to the agency or Minister to reconsider

1.1

In certain instances, the Office of the Victorian Information Commissioner (OVIC)³ may refer a decision back to the agency or Minister that made it. If this happens, the agency or Minister reconsiders the original decision and may make a ‘fresh’ decision on the request.⁴

1.2

Section 49L outlines when OVIC can refer a decision and what happens after the agency or Minister reconsiders the original decision.

1.3

Section 49MA sets out the process for after a fresh decision has been made (for example, what happens if the applicant agrees with the decision or does not agree).

When may OVIC refer a decision?

1.4

During a review, OVIC may:

make preliminary inquiries to determine the material facts and issues and see whether the review can be informally resolved;¹¹
require an agency or Minister to process or identify a reasonable sample of documents in relation to a decision made under section 25A(1) or section 25A(5);¹²
require an agency or Minister to further search for documents relevant to a request;¹³
issue a notice to produce or attend, which compels the person to produce a document or attend an examination to give evidence.¹⁴

1.5

If, after doing one or more of the steps outlined above, and OVIC considers it reasonably likely that the agency or Minister can make a fresh decision that is satisfactory to the applicant, then OVIC may refer the matter back to the agency or Minister to reconsider the decision.¹⁵

1.6

Before referring the matter, OVIC must seek the applicant’s agreement.¹⁶

What does ‘reasonably likely’ mean?

1.7

OVIC may only refer the decision back to an agency or Minister if it appears ‘reasonably likely’ that the agency or Minister can make a fresh decision in a way that is satisfactory to the applicant and in accordance with law.

1.8

‘Reasonably likely’ means a chance of an event occurring or not occurring which is real, not fanciful, or remote.¹⁸

1.9

If there is a real chance that the agency or Minister will make a decision that is satisfactory to the applicant, and in accordance with the law, then the Information Commissioner will consider that it is reasonably likely.

Example

After making preliminary inquiries, OVIC assists the applicant to narrow the scope of their request.

OVIC considers it reasonably likely that the agency will make a fresh decision on the narrowed request that provides greater access to the documents than the applicant requested, which would be satisfactory to the applicant and in accordance with the law.

What happens after OVIC refers a decision?

1.10

After referring a matter, the agency or Minister has 28 days from the day after the referral to reconsider the original decision.²³ The agency or Minister and the Information Commissioner may agree in writing to another period.²⁴

1.11

The time for OVIC to conduct a review pauses when a matter is referred to the agency or Minister.²⁵

1.12

After the 28 days ends (or longer as agreed between the agency or Minister and OVIC), the agency or Minister must notify OVIC within three business days that a fresh decision:

has been made; or
has not been made.²⁶

What happens if a fresh decision is made?

1.13

If the agency or Minister makes a fresh decision, they must revoke the earlier decision and notify the applicant of the fresh decision.³²

1.14

When notifying the applicant of the fresh decision, the agency or Minister must also tell the applicant:

that the applicant has 28 days after being notified of the fresh decision to tell OVIC in writing whether the applicant agrees or does not agree with the decision;³³ and
if the applicant does not tell OVIC whether they agree or do not agree with the decision within the 28 days, then the applicant is assumed to agree with the fresh decision.³⁴

1.15

This means the applicant has 28 days after being notified of the fresh decision to tell OVIC in writing whether they agree or do not agree with the fresh decision.³⁵

1.16

If after 28 days, OVIC does not hear from the applicant, the applicant is assumed to agree with the fresh decision.³⁶

More information

For more information on:

what happens after a fresh decision is made (for example, what happens if the applicant does not agree with the fresh decision), see section 49MA – Procedure after reconsideration under section 49L or 49M;
when an agency or Minister can reconsider a decision on their own initiative, see section 49M – Reconsideration at agency’s or Minister’s own initiative.

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 49L.
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 49L.
Freedom of Information Act 1982 (Vic), section 49K.
Freedom of Information Act 1982 (Vic), section 49KA(2)(a).
Freedom of Information Act 1982 (Vic), section 49KA(2)(b).
Freedom of Information Act 1982 (Vic), section 61U.
Freedom of Information Act 1982 (Vic), section 49L(1).
Freedom of Information Act 1982 (Vic), section 49L(1A).
Freedom of Information Act 1982 (Vic), section 49K.
Freedom of Information Act 1982 (Vic), section 49KA(2)(a).
Freedom of Information Act 1982 (Vic), section 49KA(2)(b).
Freedom of Information Act 1982 (Vic), section 61U.
Freedom of Information Act 1982 (Vic), section 49L(1).
Freedom of Information Act 1982 (Vic), section 49L(1A).
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at 842.
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at 842.
Freedom of Information Act 1982 (Vic), section 49L(2).
Freedom of Information Act 1982 (Vic), section 49L(2).
Freedom of Information Act 1982 (Vic), section 49L(3).
Freedom of Information Act 1982 (Vic), section 49L(4).
Freedom of Information Act 1982 (Vic), section 49L(2).
Freedom of Information Act 1982 (Vic), section 49L(2).
Freedom of Information Act 1982 (Vic), section 49L(3).
Freedom of Information Act 1982 (Vic), section 49L(4).
Freedom of Information Act 1982 (Vic), section 49L(5)(a).
Freedom of Information Act 1982 (Vic), sections 49L(5)(b) and 49L(6).
Freedom of Information Act 1982 (Vic), sections 49L(5)(b) and 49L(7).
Freedom of Information Act 1982 (Vic), section 49L(6).
Freedom of Information Act 1982 (Vic), section 49L(7).
Freedom of Information Act 1982 (Vic), section 49L(5)(a).
Freedom of Information Act 1982 (Vic), sections 49L(5)(b) and 49L(6).
Freedom of Information Act 1982 (Vic), sections 49L(5)(b) and 49L(7).
Freedom of Information Act 1982 (Vic), section 49L(6).
Freedom of Information Act 1982 (Vic), section 49L(7).