Section 49MA - Procedure after reconsideration under section 49L or 49M
Extract of legislation
49MA | Procedure after reconsideration under section 49L or 49M | |||
(1) | If an applicant agrees with a fresh decision made by an agency or Minister under section 49L or 49M, the Information Commissioner must dismiss the review. | |||
(2) | Subject to subsection (4), if the applicant does not agree with the fresh decision the Information Commissioner must complete the review on the basis of the fresh decision within— | |||
(a) | 30 days after the date on which the applicant advises the Information Commissioner under section 49L(6) or 49M(6) that the applicant does not agree with the fresh decision; or | |||
(b) | if that period is extended or further extended, that period as extended | |||
(3) | Subject to subsection (4), if the agency does not make a fresh decision under section 49L or 49M within the period referred to in section 49L(2) or 49M(2) the Information Commissioner must recommence the review and complete the review within— | |||
(a) | 14 days after the earlier of— | |||
(i) | the date on which the notice under section 49L(4) or 49M(4) is given; or | |||
(ii) | the end of the period within which the notice under section 49L(4) or 49M(4) is required to be given; or | |||
(b) | if that period is extended or further extended, that period as extended. | |||
(4) | A review cannot be completed under this section in relation to a fresh decision if the decision is to refuse to grant access to a document on the basis that the document is claimed to be exempt under section 29A. | |||
(5) | The Information Commissioner may extend a period referred to in subsection (2)(a) or (3)(a) by agreement in writing with the applicant, any number of times. | |||
(6) | A period referred to in subsection (2)(a) or (3)(a) cannot be extended or further extended under this section if that period has expired. |
Where the applicant agrees with the fresh decision
If an applicant agrees (or is assumed to agree) with a fresh decision, they cannot apply to the Victorian Civil and Administrative Tribunal (VCAT) to review the fresh decision.7
Where the applicant does not agree with the fresh decision
If the applicant does not agree with the fresh decision, OVIC will review it.11
OVIC has 30 days (or longer as agreed to by the applicant) to complete the review of the fresh decision from when the applicant tells OVIC they do not agree with it.12
If the fresh decision is to refuse to grant access to a document because it is exempt under section 29A (documents affecting national security, defence or international relations), OVIC cannot review that decision. Instead, the applicant can apply to VCAT to review the decision.13
What happens if the agency or Minister does not make the decision within the required time?
If the fresh decision is not made within 28 days (or longer as agreed), OVIC must continue reviewing the original decision.18
If the agency or Minister provides a fresh decision made out of time, OVIC will consider this information in conducting the review. OVIC expects agencies and Ministers will make fresh decisions within the required time.
Access charges and fresh decisions
An agency or Minister may charge an applicant for certain activities involved in searching for and providing access to documents. These charges are known as ‘access charges’ and are calculated under section 22 and under the Freedom of Information (Access Charges) Regulations 2014.
Access charges are separate from the application fee required in section 17(2A).25
An agency or Minister may apply access charges when making a fresh decision and request a deposit from the applicant (the exceptions to applying access charges in section 22 still apply). However, an agency or Minister cannot charge twice for the same search.26
If an agency or Minister requests the applicant to pay an access charges deposit, the agency or Minister must follow the process in section 22. This includes giving the applicant 21 days to confirm that they wish to proceed with a request.27
More information
For more information on when an agency or Minister may, or may be required to, reconsider its decision during a review, see:
- 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 49MA(1).
- Freedom of Information Act 1982 (Vic), section 49MA(1).
- Freedom of Information Act 1982 (Vic), section 50(3G)(a).
- Freedom of Information Act 1982 (Vic), section 49MA(1).
- Freedom of Information Act 1982 (Vic), section 49MA(1).
- Freedom of Information Act 1982 (Vic), section 50(3G)(a).
- Freedom of Information Act 1982 (Vic), section 49MA(2).
- Freedom of Information Act 1982 (Vic), section 49MA(2).
- Freedom of Information Act 1982 (Vic), sections 49MA(4) and 50(1)(e).
- Freedom of Information Act 1982 (Vic), section 49MA(2).
- Freedom of Information Act 1982 (Vic), section 49MA(2).
- Freedom of Information Act 1982 (Vic), sections 49MA(4) and 50(1)(e).
- Freedom of Information Act 1982 (Vic), section 49MA(3).
- This refers to the notice required under sections 49M(4) and 49L(4), which requires an agency or Minister to notify the Information Commissioner within three business days after the 28 days (or longer as agreed) that a fresh decision has or has not been made.
- Freedom of Information Act 1982 (Vic), section 49MA(2).
- Freedom of Information Act 1982 (Vic), section 49MA(5).
- Freedom of Information Act 1982 (Vic), section 49MA(3).
- This refers to the notice required under sections 49M(4) and 49L(4), which requires an agency or Minister to notify the Information Commissioner within three business days after the 28 days (or longer as agreed) that a fresh decision has or has not been made.
- Freedom of Information Act 1982 (Vic), section 49MA(2).
- Freedom of Information Act 1982 (Vic), section 49MA(5).
- See Freedom of Information (Access Charges) Regulations 2014 (Vic), regulation 6, Note.
- Sunbury Progress Association v Hume City Council [2004] VCAT 2344.
- Freedom of Information Act 1982 (Vic), section 22(3) and Professional Standard 4.2.
- See Freedom of Information (Access Charges) Regulations 2014 (Vic), regulation 6, Note.
- Sunbury Progress Association v Hume City Council [2004] VCAT 2344.
- Freedom of Information Act 1982 (Vic), section 22(3) and Professional Standard 4.2.