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The freedom of information complaints process

The Office of the Victorian Information Commissioner can investigate complaints about certain actions taken or action failed to be taken by an agency or Minister under the Freedom of Information Act 1982 (Vic) (the Act). This guide provides an overview of how we deal with complaints.

The complaint process is kept as informal as possible. The agency or Minister will receive a copy of your complaint, and must cooperate in the complaints process. We ask that you treat your Case Manager with courtesy and respect at all times.

Making a complaint about an agency or Minister

Who can make a complaint?

You can make a complaint if:

  • you made a request under the Act to an agency or Minister, and your complaint relates to that request;
  • an agency or Minister made a decision to give someone else access to personal information about you or about someone who is deceased, if you are their next of kin; or
  • an agency or Minister made a decision to give someone else access to information about your business, commercial or financial affairs.

What can I complain about?

You can complain about an action taken, or failed to be taken, by an agency when performing functions or meeting their obligations under the Act. This may include:

  • a delay in handling your request;
  • a decision that a requested document does not exist or cannot be found;
  • a failure to comply with the requirement to publish a statement setting out certain information about the agency and documents it holds, including details of policies, procedures and categories of documents it maintains; or
  • a failure by a principal officer or any other officer of an agency to comply with Professional Standards in performing functions under the Act.

You can also complain about certain actions taken or failed to be taken by a Minister in relation to a request. This may include:

  • a delay in handling your request;
  • a decision that a requested document does not exist or cannot be found;
  • a decision to defer giving access to documents; or
  • a decision to release personal or business information.

How can I make a valid complaint?

For your complaint to be valid, it must:

  • be made within 60 days of the conduct you are complaining about, unless the delay was due to an action of the agency or Minister;
  • be in writing;
  • identify the relevant agency or Minister; and
  • describe the nature of your complaint – you should provide all relevant details and supporting information or documents.

It is also helpful if you can describe what you would consider as an appropriate outcome to your complaint.

Resolving your complaint

Our approach is to resolve complaints with as little formality and technicality as possible.

We will contact you in writing to advise you if your complaint has been accepted, or if we need any further documents or information.

We ask that you respond to our requests for information as promptly as possible.

Once your complaint has been accepted, we:

  • are required under the Act to notify the relevant agency or Minister and provide them with a copy of your complaint;
  • may notify any third party if we think their rights or interests may be affected by your complaint;
  • may make preliminary inquiries or consult with you and the agency or Minister to determine the facts and issues of your complaint, or to ascertain whether the complaint can be resolved informally; and
  • must deal with your complaint in private, which means that information relating to the complaint will be kept confidential, between you and the agency or the Minister.

How long will it take to resolve my complaint?

While there is no time limit specified under the Act for resolving a complaint, we try to deal with and resolve complaints in a timely manner. Your prompt and active participation in this process will enable us to resolve your complaint as efficiently as possible.

Informal resolution of complaints

If we determine a complaint can be resolved informally, we must take reasonable steps to resolve the complaint. Examples of an informal resolution may include:

  • the agency or Minister undertaking an additional search, and discovering further documents;
  • the agency or Minister providing you with an apology or acknowledgement of a delay in responding to your request; or
  • the agency or Minister providing a more detailed explanation of the way it handled your request.

If you are satisfied with the agency or Minister’s response to your complaint, we will request your written consent to withdraw the complaint, or your agreement that it has been resolved.

If you are not satisfied with the agency or Minister’s response, we may ask you to provide a further explanation as to what specific outcome you are seeking in order to resolve your complaint, or if we believe it to be relevant, to provide additional information or documentation to assist us to resolve your complaint.

Procedural fairness

We must ensure you and the agency or Minister are offered procedural fairness when handling your complaint.

This requires us to give you and the agency or Minister an opportunity to respond before making an adverse decision or comment that may affect your rights or interests, or those of the agency or Minister.

Procedural fairness also requires us to be impartial in the handling of your complaints and in our dealing with you and the agency or Minister.

Formal resolution of complaints

Where we are unable to informally resolve complaints, we may decide on a formal approach.

To formally resolve a complaint we may:

  • conciliate the complaint between you and the agency or Minister, with the aim of reaching an agreement to resolve the complaint. If your complaint is successfully resolved, the conciliation outcome will be recorded in a written agreement and a copy provided to you and the agency or Minister;
  • require the agency or Minister to produce documents or attend to answer questions; or
  • make recommendations to the agency or Minister in relation to the complaint, including recommendations for improvements to policies, procedures and systems for compliance with the Act.

Dismissal of complaints

There are instances where we consider conciliation or the use of formal powers are not appropriate. This is likely in cases where we accept the agency or Minister has not made an error in handling your complaint, or where the agency has taken reasonable steps to correct any error made.

If we have reached this conclusion but you remain dissatisfied, we will try to assist you with further information about how you might resolve your complaint outside the complaints process. For example, by suggesting terms for a new request or referring you to another agency that can deal with your complaint.

If you do not consent to close your complaint, fail to respond to our enquiries, or we consider we have taken all relevant action in relation to your complaint, the Information Commissioner or Public Access Deputy Commissioner (or their delegate) may decide to dismiss your complaint.

Disclaimer: The information in this document is general in nature and does not constitute legal advice.

Version: 1.0, October 2019

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