Section 61B - Information Commissioner may accept or decline to deal with complaint

Extract of legislation

61B	Information Commissioner may accept or decline to deal with complaint
	(1)	The Information Commissioner may—
		(a)	accept a complaint to the extent that the complaint relates to—
			(i)	a matter referred to in section 61A(1)(a); or
			(ia)	a matter referred to in section 61A(1)(ab);
			(ii)	a matter referred to in section 61A(1)(b) to (e); or
		(b)	determine not to accept a complaint or dismiss a complaint at any stage.
	(2)	Without limiting subsection (1)(b), the Information Commissioner may determine not to accept a complaint or may dismiss a complaint on any of the following grounds—
		(a)	the action or failure by an agency was not in the performance by the agency of its functions or obligations under this Act;
		(ab)	the action or failure by a principal officer was not in the performance by the principal officer of the principal officer’s functions or obligations under Part IB or II;
		(b)	the complainant has the right to make a complaint about the action to another body and has not exercised that right;
		(c)	the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
		(d)	the complainant does not have a sufficient interest in the subject-matter of the complaint;
		(e)	the complainant has failed to co-operate with the Commissioner in dealing with the complaint without reasonable excuse;
		(f)	the complaint was made after the end of the time permitted to make a complaint;
		(g)	the Commissioner considers that a complaint is not appropriate in the circumstances;
		(h)	the Commissioner is unable to contact the applicant following reasonable attempts to do so.
	(3)	The Information Commissioner must dismiss a complaint if the subject-matter of the complaint has been, or could be, dealt with by an application for review by the Information Commissioner or the Tribunal.
	(4)	If the Information Commissioner dismisses a complaint, the Commissioner must give written notice to the complainant setting out the grounds for dismissing the complaint.

Guidelines

OVIC may not accept a complaint or may dismiss a complaint

1.1

When the Office of the Victorian Information Commissioner (OVIC) receives a freedom of information (FOI) complaint, OVIC may: ⁴

accept the complaint; or
not accept the complaint; or
accept the complaint and then later dismiss it.

1.2

OVIC may choose to not accept a complaint on several different grounds. These are outlined below. OVIC considers each complaint on a case-by-case basis.

1.3

If a complaint is not accepted, OVIC will let the complainant know why their complaint has not been accepted and the complaint will not progress any further.

1.4

Where a complaint is accepted, OVIC may also dismiss it at any point during the complaint process. The grounds for dismissing a complaint are outlined below. ⁵

1.5

If a complaint is dismissed, OVIC will provide the complainant and the agency with a written notice which explains the reasons for the dismissal.⁶ The complaint will not progress any further if it has been dismissed.

When a complaint may not be accepted or may be dismissed

1.6

Reasons OVIC may dismiss, or not accept, a complaint include:

the action or failure by an agency was not in the performance by the agency of its functions or obligations under the Act;¹⁷
the action or failure by an agency was not in the performance of its functions or obligations under Part IB or Part II;¹⁸
the complainant has failed to exercise any right to make a complaint to another body;¹⁹
the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;²⁰
the complainant lacks sufficient interest in the subject of a complaint;²¹
the complainant has, without reasonable excuse, failed to cooperate in dealing with the complaint;²²
the complaint was made out of time;²³
the complaint is not appropriate in the circumstances;²⁴
the complainant cannot be contacted, following reasonable attempts to do so;²⁵ or
the subject matter of the complaint may be dealt with by application for review by OVIC or the Victorian Civil and Administrative Tribunal (VCAT).²⁶

1.7

Some of these are discussed further, below.

1.8

Additionally, OVIC cannot accept a complaint about:

matters that relate to OVIC’s other functions such as privacy and information security (privacy complaints may be referred under the Privacy and Data Protection Act 2014 (Vic));
general operations of agencies outside of their FOI functions; or
complaints about corruption or other similar matters.

1.9

The kind of complaints outlined above cannot be handled through the FOI complaints process, however OVIC may refer complainants to the appropriate body or organisation.

Action or failure was not in the performance of functions or obligations under the Act

1.10

OVIC may dismiss or not accept a complaint if the action or failure by an agency was not in the performance by the agency of its functions or obligations under the Act.²⁸

Example

An applicant makes an FOI request to an agency. The agency considers that the request is not valid and begins consultation with the applicant under section 17 to help them to make the request valid.

The applicant complains to OVIC about a delay in the agency processing the request.

OVIC considers that there has been no delay as the agency has not exceeded the statutory timeframe for making its decision. The agency has not yet received a valid request, and it is still working with the applicant to help them make a valid request.

OVIC does not accept the complaint as OVIC considers the agency has not failed in its performance of its functions under the Act.

The complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith

1.11

OVIC may dismiss or not accept a complaint if the application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith.

1.12

These terms are not defined in the Act,³³ however they are often considered in applications for strike out of court and tribunal proceedings. VCAT has said that as a matter of law these words really mean ‘doomed to fail.’³⁴

1.13

Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) allows VCAT to dismiss or strike out a proceeding whether or not it has heard all evidence if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance.³⁵ VCAT will only strike out a proceeding under this section if the proceeding is hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail.³⁶

1.14

OVIC similarly views dismissal under this section as a very high bar and will only dismiss those applications for review which are obviously bound to fail. This power is only rarely used.

The complainant does not have sufficient interest in the subject matter of the complaint

1.15

OVIC may dismiss or not accept a complaint if the complainant does not have sufficient interest in the subject matter of the complaint.³⁸

1.16

Having ‘sufficient interest’ can mean an interest which a person other than a member of the general public would hold.

1.17

A complainant will be likely to be considered to have sufficient interest if the matter relates to an FOI request the complainant made, or the complainant’s interests, including personal, proprietary, business, economic, social, or political interests are likely to be affected.

The complainant has failed to co-operate without reasonable excuse or OVIC is unable to contact the complainant following reasonable attempts

1.18

OVIC may not accept or dismiss a complaint if the complainant fails to co-operate without reasonable excuse or OVIC is unable to contact the complainant following reasonable attempts.⁴⁰

1.19

A complainant has a responsibility to engage with OVIC’s complaints process and to respond to requests for information or documents. Where a complainant does not respond to OVIC or does not provide what is required in a timely manner, OVIC may decide to not accept or may dismiss the complaint unless the complainant provides a reasonable excuse.

1.20

A complainant will have a reasonable excuse where they have an appropriate justification for the conduct (for example, because of a medical issue they have been unable to respond to OVIC within the time requested).

The complaint was made out of time

1.21

OVIC may dismiss or not accept the complaint if it was made out of time.⁴⁴

1.22

A complaint must be made within 60 days after the action or conduct complained of occurred.⁴⁵ However, OVIC may accept a complaint that was made out of time because of an act or omission of the agency, Principal Officer, or Minister.⁴⁶

More information

For more information when a complaint must be made and when OVIC may accept a complaint out of time, see section 61A – Complaints.

The complaint is not appropriate in the circumstances

1.23

OVIC may dismiss or not accept a complaint if it considers the complaint is not appropriate in the circumstances.⁴⁸

1.24

OVIC considers all matters on a case-by-case basis. Circumstances where a complaint may not be appropriate could include:

the complaint has been pursued to the fullest extent and OVIC determines there is no basis for making further enquiries or investigations (for example, after consultation, the complainant does not provide new or relevant information that warrants making further enquiries with the agency or Minister);
OVIC determines the agency or Minister has not breached the Act or the FOI Professional Standards;
where the agency or Minister has taken reasonable steps to correct any error or omission made;
the agency or Minister has provided a satisfactory explanation for the basis of the complaint; or
the outcome the applicant is seeking is not appropriate or cannot be achieved.

Examples

Example 1

The complaint relates to a decision that documents no longer exist.

The agency explains, and provides evidence to show, that the document was destroyed in accordance with their relevant retention and disposal authority. This explains why the requested document no longer exists.

Example 2

A complainant makes a complaint to OVIC about an FOI request to their local council about a fencing dispute. The outcome they seek is for the fencing dispute to be resolved.

The FOI complaints process cannot achieve this.

The complaint can be dealt with as part of a review by OVIC or VCAT

1.25

If the subject matter of a complaint has been, or could be, dealt with by an application for review by OVIC or by VCAT, then the complaint must be dismissed.⁵¹

1.26

In deciding whether OVIC must dismiss a complaint under this section, OVIC will:

identify the subject matter of the complaint (the topic or substance of the complaint, including the relief sought); and
consider whether the complaint can be ‘dealt with’ (addressed or resolved) by a review.

1.27

Dismissal will occur at the point when OVIC identifies that the ground for dismissal in section 61B(3) applies.

1.28

This may be:

when OVIC initially receives the complaint – in this case, OVIC will notify the person of the dismissal in the course of OVIC accepting their review application; or
after OVIC accepts the complaint and receives more information about it; or
where the applicant makes a complaint during a review (for example, about the adequacy of the agency’s search and/or its failure to identify further documents).

Example

An agency decides to refuse access to a document. The applicant applies to OVIC for a review of that decision. The applicant also wishes to complain about the agency’s failure to identify further documents in relation to the same request.

OVIC can deal with both the decision to refuse access to a document and the applicant’s belief that more documents should have been located, in a review. As part of the review, OVIC can require an agency to conduct a further search for documents if it is not satisfied that an adequate search has been undertaken.⁵²

In contrast to a complaint about the adequacy of an agency’s search for documents, there are other grounds of complaint that could not be dealt with by an application for review, for example: a complaint about delay.

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.
Freedom of Information Act 1982 (Vic), section 61B(1)(b).
Freedom of Information Act 1982 (Vic), section 61B(4).
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.
Freedom of Information Act 1982 (Vic), section 61B(1)(b).
Freedom of Information Act 1982 (Vic), section 61B(4).
Freedom of Information Act 1982 (Vic), section 61B(2)(a).
Freedom of Information Act 1982 (Vic), section 61B(2)(ab).
Freedom of Information Act 1982 (Vic), section 61B(2)(b).
Freedom of Information Act 1982 (Vic), section 61B(2)(c).
Freedom of Information Act 1982 (Vic), section 61B(2)(d).
Freedom of Information Act 1982 (Vic), section 61B(2)(e).
Freedom of Information Act 1982 (Vic), section 61B(2)(f).
Freedom of Information Act 1982 (Vic), section 61B(2)(g).
Freedom of Information Act 1982 (Vic), section 61B(h).
Freedom of Information Act 1982 (Vic), section 61B(3).
Freedom of Information Act 1982 (Vic), section 61B(2)(a).
Freedom of Information Act 1982 (Vic), section 61B(2)(ab).
Freedom of Information Act 1982 (Vic), section 61B(2)(b).
Freedom of Information Act 1982 (Vic), section 61B(2)(c).
Freedom of Information Act 1982 (Vic), section 61B(2)(d).
Freedom of Information Act 1982 (Vic), section 61B(2)(e).
Freedom of Information Act 1982 (Vic), section 61B(2)(f).
Freedom of Information Act 1982 (Vic), section 61B(2)(g).
Freedom of Information Act 1982 (Vic), section 61B(h).
Freedom of Information Act 1982 (Vic), section 61B(3).
Freedom of Information Act 1982 (Vic), section 61B(2)(a).
Freedom of Information Act 1982 (Vic), section 61B(2)(a).
Freedom of Information Act 1982 (Vic), section 61B(2)(c).
Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSC 201.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 75(1)(a).
Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065.
Freedom of Information Act 1982 (Vic), section 61B(2)(c).
Zeqaj v Ombudsman Victoria (General) [2010] VCAT 1204; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSC 201.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 75(1)(a).
Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065.
Freedom of Information Act 1982 (Vic), section 61B(2)(d).
Freedom of Information Act 1982 (Vic), section 61B(2)(d).
Freedom of Information Act 1982 (Vic), section 61B(2)(e).
Freedom of Information Act 1982 (Vic), section 61B(2)(e).
Freedom of Information Act 1982 (Vic), section 61B(2)(f).
Freedom of Information Act 1982 (Vic), section 61A(4).
Freedom of Information Act 1982 (Vic), section 61A(5).
Freedom of Information Act 1982 (Vic), section 61B(2)(f).
Freedom of Information Act 1982 (Vic), section 61A(4).
Freedom of Information Act 1982 (Vic), section 61A(5).
Freedom of Information Act 1982 (Vic), section 61B(2)(g).
Freedom of Information Act 1982 (Vic), section 61B(2)(g).
Freedom of Information Act 1982 (Vic), section 61B(3).
Freedom of Information Act 1982 (Vic), section 61GA.
Freedom of Information Act 1982 (Vic), section 61B(3).
Freedom of Information Act 1982 (Vic), section 61GA.

Section 61B - Information Commissioner may accept or decline to deal with complaint

Extract of legislation

Guidelines

OVIC may not accept a complaint or may dismiss a complaint

When a complaint may not be accepted or may be dismissed

Action or failure was not in the performance of functions or obligations under the Act

Example

The complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith

The complainant does not have sufficient interest in the subject matter of the complaint

The complainant has failed to co-operate without reasonable excuse or OVIC is unable to contact the complainant following reasonable attempts

The complaint was made out of time

More information

The complaint is not appropriate in the circumstances

Examples

The complaint can be dealt with as part of a review by OVIC or VCAT

Example

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