Section 53 - Reviews where decisions delayed

Section 53 ‘deems’ the agency or Minister to have refused the request if they have not provided the decision to the applicant within the required time. This is known as a deemed refusal.

It allows an applicant to apply directly to the Victorian Civil and Administrative Tribunal (VCAT) for review (without applying to the Office of the Victorian Information Commissioner for review first), before receiving a decision from the agency or Minister once the time for providing the decision has passed.

Section 53 applies to:

• a request for access to documents made under section 17;
• an amendment request made under section 39; and
• a notice made under section 12(1) for an agency to specify a document in Part II.

There is no time limit by which an applicant must apply to VCAT, provided they have not received the decision before applying to VCAT.⁵

An applicant is not required to apply to VCAT in relation to a deemed refusal. They may decide to wait until the agency or Minister makes the decision.⁶

Section 53 sets out what happens if an agency or Minister makes a decision after the applicant applies to VCAT for review, but before VCAT makes a decision on the review.⁷ It also allows an agency or Minister to apply to VCAT for more time to deal with the request.⁸

To apply to VCAT on a deemed refusal, three conditions must be satisfied:

• an FOI request for documents, request for amendment of personal records, or notice requiring documents be specified in Part II, has been made to an agency or Minister;
• the relevant time period in section 21, section 43, or section 12(2) respectively has passed;
• a notice of a decision on the request has not been received by the applicant, claimant or person who served the notice respectively.

An agency or Minister is deemed to have made a decision on the last day of the relevant period, where that period has passed.¹³

The relevant period refers to how long the agency or Minister has to provide a decision to the person depending on the kind of request that was made:

• For a request made under section 17 – the relevant period is outlined in section 21, an agency or Minister has 30 days to provide a decision to the applicant however this period may be extended where third party consultation is required or with the consent of the applicant.¹⁴
• For an amendment request made under section 39 – the relevant period is outlined in section 43. An agency or Minister has 30 days to provide a decision to a claimant.¹⁵
• For a notice made under section 12(1) – the relevant period is outlined in section 12(2)(a). An agency must make a decision within 21 days of receiving the notice and provide the decision to the person who served the notice on the agency.¹⁶

VCAT may make an order that allows an agency or Minister more time to make a decision before VCAT starts hearing the review. This may be done before the hearing so that VCAT can postpone hearing the matter until the agency or Minister has searched for documents, assessed them, and made a decision.

When making this order, VCAT may include any conditions it thinks fit. This may include adding a condition that any access charges should be reduced or waived.¹⁸

An agency or Minister should continue processing a request until or unless the applicant applies to VCAT for review on a deemed refusal. An agency or Minister may make a decision even after the time period has run out.

If the agency or Minister makes a decision before the applicant applies to VCAT, then the applicant must first apply to OVIC for review.²² If the applicant is not satisfied with OVIC’s decision, they can then apply for a VCAT review.²³

If an agency or Minister makes a decision after an applicant applies to VCAT, VCAT may, at the applicant’s request, treat the application as including a review of the agency or Minister’s actual decision.³¹

The actual decision does not replace the deemed decision.³² VCAT will review both the deemed refusal and the actual decision.³³ However, practically speaking, VCAT generally only reviews the actual decision because the decision outlines the exemptions that the agency or Minister claims.³⁴

It has been argued that where an agency makes a decision, but that decision is one that VCAT does not have power to review under section 50 (for instance, a decision that no documents falling within the request exist), then VCAT loses jurisdiction to review the deemed refusal.³⁵

However, VCAT has said that where its jurisdiction has been properly engaged by an application to review a deemed refusal, it retains its jurisdiction to consider whether or not there are documents relevant to a request, and to order further searches where there is evidence that documents responsive to a request exist. This proposition was later qualified in Myers, where VCAT found that it did not have jurisdiction to review a subsequent decision that no documents exist because there was no evidence that the documents existed.³⁶

If an agency or Minister makes a decision after an application to VCAT has been made, VCAT cannot extend the application for review to the new decision where the decision is to:

• grant access to a document (without deferring access under section 24);
• amend a document; or
• specify a document under Part II. ³⁸