Skip to Content
From Monday 12 September 2020, OVIC's website will no longer be supported in Internet Explorer (IE).
We recommend installing Microsoft Edge, Google Chrome, Safari, Firefox, or Opera to visit the site.

Section 61A - Complaints

Guidelines

What can you make an FOI complaint about?

1.1

Part VIA outlines on what grounds a person may make a freedom of information (FOI) complaint to the Office of the Victorian Information Commissioner (OVIC). Part VIA also outlines the Information Commissioner and the Public Access Deputy Commissioner’s powers in handling FOI complaints.10

1.2

A person may make an FOI complaint to OVIC about:

  • a delay by an agency or Minister in processing a valid request within the statutory timeframe;11
  • a decision by an agency or Minister that a document does not exist or cannot be located; 12
  • inadequate search for documents by an agency or Minister; 13
  • agency non-compliance with the FOI Professional Standards; 14
  • non-compliance with Part II; 15
  • an agency not providing assistance to an applicant to make a valid FOI request; 16
  • a decision by a Minister to defer giving access to a document; 17
  • an action taken or failed to be taken by Minister in making a decision to disclose personal or business information (for example, if the person is a third party whose information was released under section 33 or 34, a decision to release the person’s personal or business information);
  • any other action taken or failed to be taken by an agency when performing functions under the Act.18

Complaint about a delay

1.3

Section 21 specifies the statutory timeframe in which an agency or Minister must make a decision in relation to a request. Where an agency or Minister does not make a decision within the statutory timeframe, or the extended timeframe agreed to by the applicant, a complaint can be made to OVIC about that delay.

1.4

Where an agency or Minister has exceeded the statutory timeframe, they are taken to have refused access to documents in full (sometimes referred to as a ‘deemed refusal decision’).22 Where this happens, the applicant can apply directly to the Victorian Civil and Administrative Tribunal (VCAT) for review of that deemed refusal decision instead of making a complaint to OVIC.23 Where an applicant makes an application to VCAT in addition to making a complaint to OVIC, OVIC must dismiss a complaint where the subject matter of the complaint has been or could be dealt with by an application for review by VCAT.24

Complaint about inadequate search for documents

1.5

When processing a request, agencies must conduct a thorough and diligent search for documents relevant to the request.26 In some circumstances, an agency may locate some documents in response to a request, but the applicant may believe that the agency should have located more documents. When this happens, an applicant may make an FOI complaint to OVIC about their belief that the agency or Minister should have located more documents.

1.6

In handling a complaint about an inadequate search for documents, OVIC may require an agency to undertake a further search to locate missing documents.

Making a complaint to OVIC

Requirements for a valid complaint

1.7

A complaint must be made in writing and must:

  • set out the nature of the complaint;30
  • identify the agency or the Minister to which the complaint relates;31 and
  • be made within 60 days after the action or conduct to which the complaint relates.32

Who can make a complaint?

1.8

A person who may make a complaint includes:

  • a person who made an FOI request to an agency or Minister and the complaint relates to that request;36
  • where an agency or Minister makes a decision to release a person’s (or if the person is deceased, their next-of-kin) personal affairs information, that person whose information is the subject of the decision;37 or
  • where an agency or Minister makes a decision to release a person’s business, commercial, or financial information, that person whose information is the subject of the decision.38

How long does a person have to make a complaint?

1.9

A complaint must be made within 60 days of the action or conduct complained of occurring.41

1.10

OVIC may accept a complaint outside of the 60 day period where OVIC is satisfied that the complaint was made out of time because of an act or omission of the agency, Principal Officer, or Minister.42

Information to provide to OVIC when making a complaint

1.11

To assist OVIC in handling complaints, including to assist OVIC in determining the enquiries to make with the agency or Minister, a person making a complaint should provide information to OVIC to support their complaint. This may include providing information to OVIC with their complaint, noting OVIC must deal with their complaint in private in accordance with section 61F.

Making a complaint and applying for a review at the same time

1.12

Complainants can make an application for review of an agency’s decision at the same time they make a complaint.

1.13

However, if the subject matter of their complaint can be, or has been, dealt with by an FOI review, the complaint must be dismissed. For example, in some circumstances, a decision that a requested document does not exist or cannot be located may be dealt with by a review.44 An agency may decide that some of the requested documents do not exist or cannot be located and also decides that other documents can be found, but are exempt. A person may apply for a review regarding the exempt documents and the complaint will be dealt with as part of the review.

More information

If you’re a member of the public and wish to make a complaint, visit OVIC’s guidance on the FOI Complaints Process.

  1. Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI complaints. 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.
  2. Freedom of Information Act 1982 (Vic), sections 61A(1)(a) and (b).
  3. Freedom of Information Act 1982 (Vic), sections 61A(1)(a) and (ba).
  4. Freedom of Information Act 1982 (Vic), section 61A(1)(a).
  5. Freedom of Information Act 1982 (Vic), section 61A(1)(ab).
  6. Freedom of Information Act 1982 (Vic), section 61A(1)(ab).
  7. Freedom of Information Act 1982 (Vic), section 17(3), section 61A(1)(a).
  8. Freedom of Information Act 1982 (Vic), section 61A(1)(c). For more information about deferring access to a document, see section 24.
  9. Freedom of Information Act 1982 (Vic), section 61A(1)(ab).
  10. Section 6I sets out the functions of the Information Commissioner and the Public Access Deputy Commissioner; both are responsible for handling FOI complaints. 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.
  11. Freedom of Information Act 1982 (Vic), sections 61A(1)(a) and (b).
  12. Freedom of Information Act 1982 (Vic), sections 61A(1)(a) and (ba).
  13. Freedom of Information Act 1982 (Vic), section 61A(1)(a).
  14. Freedom of Information Act 1982 (Vic), section 61A(1)(ab).
  15. Freedom of Information Act 1982 (Vic), section 61A(1)(ab).
  16. Freedom of Information Act 1982 (Vic), section 17(3), section 61A(1)(a).
  17. Freedom of Information Act 1982 (Vic), section 61A(1)(c). For more information about deferring access to a document, see section 24.
  18. Freedom of Information Act 1982 (Vic), section 61A(1)(ab).
  19. Freedom of Information Act 1982 (Vic), section 53.
  20. Freedom of Information Act 1982 (Vic), section 50(1)(ea).
  21. Freedom of Information Act 1982 (Vic), 61B(3).
  22. Freedom of Information Act 1982 (Vic), section 53.
  23. Freedom of Information Act 1982 (Vic), section 50(1)(ea).
  24. Freedom of Information Act 1982 (Vic), 61B(3).
  25. Under Professional Standard 6.1.
  26. Under Professional Standard 6.1.
  27. Freedom of Information Act 1982 (Vic), section 61(2)(a).
  28. Freedom of Information Act 1982 (Vic), section 61(2)(b).
  29. Freedom of Information Act 1982 (Vic), section 61(2)(c).
  30. Freedom of Information Act 1982 (Vic), section 61(2)(a).
  31. Freedom of Information Act 1982 (Vic), section 61(2)(b).
  32. Freedom of Information Act 1982 (Vic), section 61(2)(c).
  33. Freedom of Information Act 1982 (Vic), section 61A(3)(a).
  34. Freedom of Information Act 1982 (Vic), section 61A(3)(b).
  35. Freedom of Information Act 1982 (Vic), section 61A(3)(c).
  36. Freedom of Information Act 1982 (Vic), section 61A(3)(a).
  37. Freedom of Information Act 1982 (Vic), section 61A(3)(b).
  38. Freedom of Information Act 1982 (Vic), section 61A(3)(c).
  39. Freedom of Information Act 1982 (Vic), section 61A(4).
  40. Freedom of Information Act 1982 (Vic), section 61A(5).
  41. Freedom of Information Act 1982 (Vic), section 61A(4).
  42. Freedom of Information Act 1982 (Vic), section 61A(5).
  43. Section 61B(3) requires a complaint that can be dealt with by an application for review be dismissed.
  44. Section 61B(3) requires a complaint that can be dealt with by an application for review be dismissed.

Contents

Back to Index
Back to top
Back to Top