Section 49M - Reconsideration at agency's or Minister's own initiative
Extract of legislation
| 49M | Reconsideration at agency’s or Minister’s own initiative | ||
| (1) | During a review under this Division, an agency may notify in writing the Information Commissioner and the applicant that the agency is reconsidering the matter that is the subject of the review at the agency’s or Minister’s own initiative and, if so, the agency or Minister may make a fresh decision. | ||
| (2) | The fresh decision must be made within 28 days after the notification under subsection (1) unless the agency or Minister 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 agency or Minister notifies the Information Commissioner under subsection (1). | ||
| (4) | The agency or Minister 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 or Minister makes a fresh decision, the agency or Minister 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 or Minister, 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. | ||
| (8) | An agency or Minister may make a fresh decision under this section only once during a review under this Division. | ||
| (9) | This section applies whether or not the Information Commissioner gives a notice under section 49KA or issues a notice to produce or attend. | ||
During a review, an agency or Minister may reconsider a request at its own initiative and make a fresh decision.4 Section 49M sets out the process for an agency or Minister to make a fresh decision on its own initiative.
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).
This section applies whether or not the Office of the Victorian Information Commissioner (OVIC)5 gives a notice under section 49KA or issues a notice to produce or attend under section 61U.6
During a review, an agency or Minister may decide to reconsider the decision being reviewed and consider whether to make a fresh decision.
An agency or Minister can only do this once during a particular review.10
To reconsider the decision, the agency or Minister must write to OVIC and to the applicant to notify them that the agency or Minister is reconsidering the decision at its own initiative and may make a fresh decision.11
The time to conduct a review stops when the agency or Minister provides this notification.12
How long does an agency or Minister have to reconsider the decision?
After the 28 days ends (or longer as agreed), the agency or Minister must notify OVIC within three business days that a fresh decision:
- has been made; or
- has not been made.18
What happens if a fresh decision is made?
If the agency or Minister makes a fresh decision, the agency or Minister must revoke the earlier decision and provide the fresh decision to the applicant.23
When notifying the applicant of the fresh decision, the agency or Minister must also tell them:
- that the applicant has 28 days after being notified of the fresh decision to tell OVIC n writing whether the applicant agrees or does not agree with the decision;24 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 it.25
This means, the applicant has 28 days after being notified of the fresh decision to write to OVIC and advise whether they agree or do not agree with the fresh decision.
If after 28 days, OVIC does not hear from the applicant, the applicant is assumed to agree with the fresh decision.26
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.
- Freedom of Information Act 1982 (Vic), section 49M(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.
- Freedom of Information Act 1982 (Vic), section 49M(9).
- Freedom of Information Act 1982 (Vic), section 49M(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.
- Freedom of Information Act 1982 (Vic), section 49M(9).
- Freedom of Information Act 1982 (Vic), section 49MA(8).
- Freedom of Information Act 1982 (Vic), section 49M(1).
- Freedom of Information Act 1982 (Vic), section 49M(3).
- Freedom of Information Act 1982 (Vic), section 49MA(8).
- Freedom of Information Act 1982 (Vic), section 49M(1).
- Freedom of Information Act 1982 (Vic), section 49M(3).
- Freedom of Information Act 1982 (Vic), section 49M(2).
- Freedom of Information Act 1982 (Vic), section 49M(2).
- Freedom of Information Act 1982 (Vic), section 49M(4).
- Freedom of Information Act 1982 (Vic), section 49M(2).
- Freedom of Information Act 1982 (Vic), section 49M(2).
- Freedom of Information Act 1982 (Vic), section 49M(4).
- Freedom of Information Act 1982 (Vic), section 49M(5)(a).
- Freedom of Information Act 1982 (Vic), sections 49M(5)(b) and 49M(6).
- Freedom of Information Act 1982 (Vic), sections 49M(5)(b) and 49M(7).
- Freedom of Information Act 1982 (Vic), section 49M(7).
- Freedom of Information Act 1982 (Vic), section 49M(5)(a).
- Freedom of Information Act 1982 (Vic), sections 49M(5)(b) and 49M(6).
- Freedom of Information Act 1982 (Vic), sections 49M(5)(b) and 49M(7).
- Freedom of Information Act 1982 (Vic), section 49M(7).
