Section 53A - Notification of reviews regarding documents affecting personal privacy
Extract of legislation
| 53A | Notification of reviews regarding documents affecting personal privacy | ||
| (1) | If— | ||
| (a) | an agency or Minister or the Information Commissioner makes a decision refusing to grant access to a document; and | ||
| (b) | a reason for the decision is that the document is an exempt document under section 33(1) because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person; and | ||
| (c) | an application is made to the Tribunal under section 50(1)(b) or (d) for review of the decision— | ||
| the agency or Minister or the Information Commissioner (as the case requires), as soon as practicable after being notified of the application, must, if practicable, give written notice in accordance with subsection (2) to the person to whom the information relates. | |||
| (2) | A notice under subsection (1) must— | ||
| (a) | inform the person to whom it is directed of their right to intervene in the review; and | ||
| (b) | request the person to inform the Tribunal, within 21 days after the day on which the notice was given, whether or not the person intends to intervene. | ||
| (3) | If— | ||
| (a) | the person does not intervene in the review; and | ||
| (b) | the Tribunal orders that access be granted to the document— | ||
| the Tribunal must, if practicable, give notice of the order to the person. | |||
| (4) | An order referred to in subsection (3)(b) does not take effect until 28 days after the day on which it is made. | ||
Section 53A requires that third parties are notified of a review at the Victorian Civil and Administrative Tribunal (VCAT), and that they have a right to intervene in that review. This allows the third party to be involved in the review proceeding and provide information to VCAT about whether releasing their information would be reasonable or not.6
Where practicable, a third party must be notified of their right to intervene at VCAT where:
- an agency or Minister refused access to a document containing the third party’s personal affairs information under section 33(1);
- the applicant applied to the Office of the Victorian Information Commissioner (OVIC) to review the agency or Minister’s decision to refuse access;
- OVIC refused access to the document on review, or OVIC did not accept or dismissed the review; and
- the applicant applied to VCAT to review the decision to refuse access.7
When notifying the third party, the agency or Minister must let the third party know of their right to intervene in the review and request that the third party tell VCAT within 21 days after the day of the notice whether or not the third party intends to intervene in the review.8
VCAT must notify the third party if the third party does not intervene in the review and VCAT decides to grant access to a document containing their personal affairs information.9 If VCAT orders release of the personal affairs information, the agency or Minister cannot release the information to the applicant until 28 days after the day on which the order was made.10
‘If practicable’
A third party only needs to be notified under section 53A where it is practicable to do so. This involves applying common sense principles.12
Agencies and Ministers should exercise their judgment when deciding whether providing notice is practicable. The following factors may be relevant:
- the age of the information or a document;
- the number of third parties to be notified;
- whether the agency or Minister has, or is reasonably able to ascertain, current contact details for a third party.
Examples
Coulston v Office of Public Prosecutions Victoria (General) [2010] VCAT 1234
The applicant sought photographs and hand-drawn plans of a house where he committed murder.
VCAT agreed that it was not practicable to provide notice under section 53A because it would cause the victims’ family distress and cause anxiety for the new residents of the house.
Vaughan v Department of Sustainability and Environment 12 VAR 207
The documents in this case were two videotapes containing visual images of over 20 Departmental officers, over 10 Police Officers, many protestors, and other individuals such as bulldozer and crane operators.
While Departmental Officers were notified, it was not practicable to notify all third parties.
- Second reading speech, Freedom of Information (Amendment) Bill 1999, Wade.
- Freedom of Information Act 1982 (Vic), section 53A(1).
- Freedom of Information Act 1982 (Vic), section 53A(2).
- Freedom of Information Act 1982 (Vic), section 53A(3).
- Freedom of Information Act 1982 (Vic), section 53A(4).
- Second reading speech, Freedom of Information (Amendment) Bill 1999, Wade.
- Freedom of Information Act 1982 (Vic), section 53A(1).
- Freedom of Information Act 1982 (Vic), section 53A(2).
- Freedom of Information Act 1982 (Vic), section 53A(3).
- Freedom of Information Act 1982 (Vic), section 53A(4).
- Schubert and Department of Premier and Cabinet (2001) 19 VAR 35 [45]. Schubert and Department of Premier and Cabinet (which considered the meaning of ‘practicable’ in section 25), VCAT considered that the use of the word ‘practicable’ ‘connotes a legislative intention to apply common sense principles.
- Schubert and Department of Premier and Cabinet (2001) 19 VAR 35 [45]. Schubert and Department of Premier and Cabinet (which considered the meaning of ‘practicable’ in section 25), VCAT considered that the use of the word ‘practicable’ ‘connotes a legislative intention to apply common sense principles.
