Section 49P - Decision on review

The Office of the Victorian Information Commissioner (OVIC)⁵ may make a fresh decision on the original application, on review. The Information Commissioner or the Public Access Deputy Commissioner may make a fresh decision under section 49P.

The Commissioner becomes the ‘original decision maker’ and their decision replaces the agency or Minister’s decision.⁶

If a Commissioner does not make a decision within the statutory timeframe,⁷ the Commissioner is considered to have made a decision refusing to grant access. This means an applicant may apply directly to the Victorian Civil and Administrative Tribunal (VCAT) to review the decision.⁸

If OVIC does not informally resolve a review or the review is not dismissed, the review will go to a Commissioner for a formal decision.

A Commissioner’s decision might disagree with the agency or Minister’s decision in full or in part (which might result in further information being released), or it might agree with the decision in full (which usually means more information is not released).

The Commissioner must provide both the applicant and the agency or Minister with reasons for the decision.¹² A written notice of decision sets out the reasons for the Commissioner’s decision and any directions for the agency or Minister to follow when giving effect to it.

The Commissioner’s decision must also set out the parties’ rights to apply to VCAT for review under section 50.¹³

Consistent with the requirement that a review be conducted a review in a timely, efficient and fair manner, and with as little formality and technicality as possible,¹⁴ during the OVIC review process, an applicant may agree to a review being conducted of a reduced number of documents than those the subject of an agency or Minister’s original decision.

A Commissioner may prepare a notice of decision that neither confirms nor denies the existence of a document where the review relates to a decision to refuse to grant access to a document or part of a document on the grounds that it would involve an unreasonable disclosure of personal affairs because it would increase risk to:

• a primary person’s safety from family violence;¹⁷
• the safety of a child or group of children.¹⁸

If a Commissioner makes a decision to disclose a document that contains information relating to third parties (that is claimed to be exempt under section 33, section 34, or section 35) OVIC must (if practicable) notify a person or undertaking who or which has a right to seek review of the Commissioner’s decision at VCAT, that they have that right.²⁰

OVIC will exercise its reasonable and fair judgment and consider the particular circumstances of a matter when considering whether it is practicable to notify a third party that their information has been released.

Factors that are relevant to determining whether notification is practicable include:

• the age of the information or the document;
• the number of third parties to be notified;
• whether OVIC has, or is reasonably able to ascertain, current contact details for the third party;
• the sensitivity of the information in the document.

If either party to the review is not satisfied with the Commissioner’s decision, they may apply to VCAT to review it:

• applicants have 60 days;²⁴
• agencies and Ministers have 14 days;²⁵
• third parties have 60 days,²⁶

to apply to VCAT for a review of the Commissioner’s decision.

If a written notice of decision requires the agency or Minister to provide access to additional information, the agency or Minister must do so within 14 days after the notice of decision is given, unless:

• the information relates to a third party (per section 33, section 34, or section 35) – in which case, the agency or Minister must wait 60 days to provide access to the information;
• an appeal to VCAT is made – in which case, the agency or Minister must wait until VCAT makes a decision.²⁸

The documents should be released as soon as practicable after the appeal periods end, unless a party has applied to VCAT for a review.

When OVIC provides a notice of decision, it usually provides a Schedule of Documents as well. The Schedule includes directions for the agency or Minister to follow when providing access to documents (for example, outlining which documents or parts of documents must be released to the applicant).

On a case-by-case basis, OVIC may provide agencies or Ministers with marked-up copies of documents when OVIC provides the notice of decision. This helps to streamline the process of preparing documents for release following an OVIC decision. It also helps to reduce ambiguity around what information is to be released.

OVIC does this as part of its commitment to taking a proactive and practical approach to reviewing decisions, and to assist agencies and Ministers in giving effect to notices of decision. It is hoped this practice will also result in more timely release of information to applicants.

It is at the agency or Minister’s discretion as to how it uses any marked-up documents from OVIC (for example, whether the agency or Minister applies the redactions from OVIC and provides the documents to the applicant, or marks-up a fresh set of documents in accordance with its own policies and procedures).

Once the marked-up documents are in the possession of the agency or Minister, the agency or Minister is responsible for their use, disclosure, and accuracy.

Judicial review is where the courts review the legality of a decision maker’s exercise of statutory power,³² such as OVIC. Judicial review looks at how the decision-maker arrived at their decision, rather than deciding a matter on the merits (the facts) of the case.

Judicial review of a Commissioner’s decision will be rare. Usually, the first point of review is VCAT. VCAT stands in the shoes of the original decision maker, considers the facts of the matter, and makes the correct and preferable decision. Even where an original decision may be invalid because of a jurisdictional error, a statutory review tribunal will usually have jurisdiction to hear and determine an application for review of the decision, including making orders for an alternate remedy.³³ The invalidity of the decision does not affect the operation of a merits review tribunal.³⁴