Section 61I - Procedure for dealing with complaint if conciliation fails
Extract of legislation
Section 61I outlines the process for dealing with complaints if conciliation fails. The section applies if the Office of the Victorian Information Commissioner (OVIC) has tried but failed to conciliate a complaint, and there is no reasonable likelihood that the complaint will be resolved by conciliation.1
Dealing with a complaint could include:
- conducting preliminary enquiries into the complaint;
- seeking submissions from the parties to the complaint;
- requiring the agency or Minister to produce a document or provide information;2
- making recommendations in relation to a complaint.
OVIC can rely on the advice and assistance provided by an OVIC staff member. Generally, OVIC case managers handle complaints, including speaking with the complainant and the agency or Minister, seeking submissions, and conciliating the complaint. OVIC staff members may also, in some cases, dismiss complaints.
‘Reasonable likelihood’ describes a chance or prospect of something happening which is real and not fanciful or remote.3 ‘No reasonable likelihood’ in this section means that there is not a real chance that the complaint can be resolved by conciliation.
OVIC must allow the complainant and agency or Minister a reasonable opportunity to make submissions. These submissions can be oral or in writing.
The complainant’s submission should describe the nature of their complaint (what they are complaining about) and provide supporting information to assist OVIC to make enquiries with the agency or Minister.
The agency’s or Minister’s submission should address the grounds on which the complaint has been accepted, such as reasons as to why an action did not occur within the required timeframe, or an explanation as to how a document search was conducted, or why a document does not exist or could not be located.
If OVIC considers it needs more information to deal with the complaint, it may serve a notice on the principal officer of the agency or a Minister to produce documents or attend to give evidence.
For more information on OVIC’s coercive powers, see Part VIC of the FOI Guidelines.
- 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 61I(4).
- Council of the Law Society of New South Wales v Levitt  NWSCA 247.