Freedom of information reviews

If you have made a freedom of information request to an agency or a Minister under the Freedom of Information Act 1982 (Vic) (the FOI Act), and the agency or Minister refuses to grant you access to documents you may apply to the Office of the Victorian Information Commissioner (OVIC) for an independent review of the decision.

For more information on what to expect when requesting a review, watch the video below.

An agency or Minister may refuse to grant you access to documents or information in full or in part, or they may refuse to amend personal information held about you. OVIC keeps the review process as informal as possible and the agency or Minister must cooperate in the review process.

When can I apply for a review?

You can apply for a review when an agency or Minister makes a decision under the FOI Act to:

refuse or deny access in full or in part to a document;
refuse to amend a record containing your personal information;
defer access to a document; or
not waive or reduce an application fee.

How do I apply for a review?

For your review application to be valid, it must:

be made within 28 days of you receiving the decision;
be in writing;
identify the relevant agency or Minister; and
identify the decision you would like reviewed.

Use our review application form to ensure you provide us with all the information we require.

When submitting an application, please include:

a copy of the request you made to the agency;
a copy of the agency’s decision letter to you; and
any other relevant background information.

If someone is applying for a review on your behalf (for example, a solicitor), you must give them written authorisation to do so. This must be provided with your review application along with a certified copy of your photo identification.

You can send your review form and supporting documents to enquiries@ovic.vic.gov.au.

How will the information I provide be used?

We use the information you provide to help us to undertake a review. This includes contacting the agency or Minster to notify them of the review, discussing the review with them, and collecting information about you from them. We are also required to disclose your name to third parties in certain circumstances where you have requested information about them (either as an individual or as a business) as part of your FOI request, and OVIC decides to release it. This will include a description of relevant documents sought and the general terms of your request.

We are required to do this so that those third parties can appeal OVIC’s decision should they wish to do so. For further information, refer to third parties affected by a decision to release information.

Assessment and preliminary inquiries

Once we receive your application for review and assess that it is within our jurisdiction, we will notify the agency. We will ask the agency for a copy of any documents that are subject to review, a copy of your original request, and any other information we need to conduct our review.

After the agency provides us with copies of the documents, we will prepare a summary of the background to your case. We may need to contact the agency to clarify the exemptions they applied to the relevant documents, the range of documents involved, and seek more information.

Where possible, OVIC will seek to resolve your review informally. If it cannot be resolved, your matter will be assigned to a Case Manager, who will contact you and may ask for further information from you.

Time to conduct the review

After conducting an initial assessment, we will provide an approximate date by which you can expect a formal decision. We will make every effort to progress your review as efficiently as possible.

The FOI Act requires the Information Commissioner or Public Access Deputy Commissioner (the Commissioner) to complete their review of a decision within 30 days of receiving your application.

If your review has not been resolved informally and the Commissioner has not provided you with a formal decision after 30 days from the date of your application, you may apply directly to the Victorian Civil and Administrative Tribunal (VCAT) for a review, instead of waiting for the Commissioner’s decision. The 60 day time limit on applying to VCAT does not commence to run when the 30 day period expires, it only commences when the Information Commissioner has made a decision on your review.

The FOI Act allows extensions to the 30 day period. If we need an extension of time, we will seek your agreement in writing.

If you agree to the extension of time, we have until that date to complete the review. If we do not complete the review by the new date, you have a right to seek a review by VCAT, rather than waiting for a decision from the Commissioner.

If you do not agree to an extension of time and the 30 day time period expires, you can either apply to VCAT or wait for our decision on your review. If you choose not to apply to VCAT, we will continue to progress your review until it is finalised.

We may seek an extension of time due to:

the complexity of your case or the large number of documents involved;
the time required to receive documents subject to review from the agency;
the time required to communicate with or obtain information/responses from you or the agency; or
the high volume of review requests submitted to OVIC.

Written submissions

The FOI Act requires that OVIC provides you and the agency with a fair, impartial and independent review process. This means we must give you and the agency a reasonable opportunity to provide us with relevant information to support your review application and the agency’s decision.

You may make a written submission to OVIC in support of your application for review. If you make a submission, it will be considered by your Case Manager and may assist in the informal resolution of your review. If the review cannot be resolved informally, the Commissioner will consider your submission when making a formal decision on your review and may refer to your submission in the final decision.

A written submission is your opportunity to provide more information about your request and why you disagree with the agency’s decision. Please let us know if any parts of your submission are confidential.

Written submission where access to information or documents has been refused

If your review relates to a decision to refuse you access to information or documents, we suggest your written submission includes:

whether you are dissatisfied with the agency’s decision to refuse access to a particular document, or a certain type of information in a document;
why you are seeking access to the documents;
why you believe the documents are not exempt and should be released to you – for example, whether you disagree with the agency’s description of the documents, or with what the agency says the likely impact of releasing certain information will be;
whether you need information relating to the personal affairs of other individuals that may be in the documents, such as their names, phone numbers, email addresses, or other information from which they may be identified; or alternatively, whether you can provide us with those individuals’ written consent to release their information to you;
whether you are willing to receive an edited copy of the documents, if the Commissioner determines that some information in the documents should be deleted because it is exempt or irrelevant to your request; and
anything else you would like the Commissioner to consider as part of the review.

Written submission where a request to amend personal information is refused

If your review relates to a request to amend information in a document relating to your personal affairs, we suggest including in your written submission evidence that the information you wish to have amended:

is inaccurate: explain why is the information untrue or incorrect?
is incomplete: detail what specific information is missing?
is out of date: explain how have the circumstances changed?
would give a misleading impression: who would be misled and why?

To assist us in conducting a timely review, please provide your submission by the requested date. If you cannot meet the request time frame, please contact your Case Manager.

You may send your submission by email to reviews@ovic.vic.gov.au.

Review and informal resolution

Your Case Manager will carefully review the documents subject to review, including any material the agency has not granted you access to, or refused to amend. They will also consider any written submissions that you or the agency have provided and make any further enquiries with you or the agency.

If the Case Manager considers it may be possible to reach an agreement between you and the agency, they will try to facilitate an informal resolution. If an agreement is reached, it will be put in writing so that you and the agency are clear on the outcome.

Commissioner’s preliminary view

Another approach that might be taken at this stage is for the Case Manager to consult with the Commissioner about your review.

The Commissioner may form a preliminary view of the likely outcome of the review. In instances where the likely outcome of the review is not to provide you with further information in the documents, we will advise you and provide you with an opportunity to respond. We will also provide you with the reasons for holding this view, and where possible, provide website links to previous decisions made by the Commissioner on reviews which are similar.

Having considered the Commissioner’s preliminary view, if you are satisfied the information you seek is exempt from release, you may decide to withdraw your review.

Alternatively, following our initial assessment or receiving the Commissioner’s preliminary view, we may obtain further information from the agency about its reasons for refusing access to some or all of the documents.

The agency may decide to reconsider its original decision and make a fresh decision. If that happens, the agency will let you know of its intention to do so. An agency has 28 days to notify you of a fresh decision. You still have review rights at OVIC if you are dissatisfied with the agency’s new decision.

Information Commissioner’s decision

If your review has not been resolved informally, the Commissioner will make a formal decision. You will be given a Notice of Decision, which outlines the Commissioner’s decision and their reasons for the decision. This new decision replaces the agency’s original decision. For example, the Commissioner may agree with the agency’s original decision, or may grant you access to further documents, or parts of documents.

The Commissioner’s decisions are published on the OVIC and the Australasian Legal Information Institute websites. Before publishing a decision, we de-identify your name and other personal information to ensure your privacy. OVIC and agency reference numbers will also be removed. Further information on the publication of review decisions is available here.

Appealing the Commissioner’s decision

If you or the agency are not satisfied with the Commissioner’s decision, you or the agency are entitled to apply to VCAT for review of that decision. You have up to 60 days from the date you receive the Notice of Decision to apply to VCAT for a review. An agency has 14 days to apply to VCAT for a review.

Where the Commissioner decides to grant you access to information relating to a third party, that third party is also entitled to appeal the decision to VCAT within 60 days.

The Commissioner’s decision on your review does not take effect until after all the relevant review periods noted above expire.

OTHER TIMES WHEN YOU CAN APPLY FOR A REVIEW AT VCAT

WHERE AN AGENCY OR MINISTER HAS NOT MADE A DECISION ON YOUR FOI REQUEST WITHIN TIME

Under the Freedom of Information Act 1982 (Vic) (the FOI Act), an agency or Minister must notify you of a decision on your access request within 30 days, or a longer time if you have consented to an extension of time or third party consultation occurs.

If you have not received a decision from the agency or Minister within 30 days or as extended, this is called a ‘deemed refusal’, which means that the agency or Minister is taken to have refused access to documents in full.

You can apply to the Victorian Civil and Administrative Tribunal (VCAT) on the basis of a deemed refusal in these circumstances.

There is no time limit on applying to VCAT in the case of a deemed refusal.

You may also make a complaint to us about the agency’s or Minister’s delay.

WHEN THE INFORMATION COMMISSIONER HASN’T COMPLETED YOUR REVIEW WITHIN TIME

Under the FOI Act, the Information Commissioner must notify you of a decision on your review within 30 days, or a longer time if you have agreed to a longer period.

You can apply to VCAT for a review if the Information Commissioner has not completed your review within the 30 day timeframe (or any longer timeframe to which you have agreed).

VCAT will treat this as a decision of the Information Commissioner to refuse access to the document, defer access or not amend personal information, as the case requires (a ‘deemed refusal’).

If you apply to VCAT for a review, the other party to the proceeding will be the original agency or Minister that you made your request to, not the Information Commissioner.

If you apply to VCAT for a review we will dismiss your review with our office.

WHEN YOUR DISAGREE WITH THE INFORMATION COMMISSIONER’S REVIEW DECISION

You may apply to VCAT for a review of the Information Commissioner’s review decision. You have 60 days to apply to VCAT for a review from the date you receive written notice of the decision.

There may be applicable charges for a VCAT review.

THIRD PARTIES AFFECTED BY A DECISION TO RELEASE INFORMATION

Where the Information Commissioner makes a decision to disclose a document affecting the personal privacy of an individual (section 33(3) of the FOI Act) or, a decision to disclose a document containing information an individual provided in confidence to an agency or Minister (section 35(1) of the FOI Act) that person, or in the case of a deceased person, their next-of-kin, may apply to VCAT for a review of the decision.

A business, commercial or financial undertaking may also apply to VCAT for a review of a decision to disclose a document referred to in section 34 of the FOI Act (i.e. trade secrets) where disclosure is contrary to the undertaking’s view.

Where practicable, the Information Commissioner must notify any relevant third parties of the decision and their VCAT review rights. This notification will provide them with sufficient details to understand the context of the review and the information to be disclosed so they can make an informed decision about whether or not to apply to VCAT.