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FOI complaints and reviews

Information about how to challenge a decision to refuse to grant access to documents under freedom of information.

The process for review depends on whether the agency that made the decision is bound by Victorian or Commonwealth law. In both cases if an application for information under FOI laws is denied or deferred, the agency or minister must give the person written reasons for their decision. They must also explain the procedure for seeking a review of their decision and the time limits that apply.

See s. 27—Freedom of Information Act 1982 (Vic)(opens in a new window) and s. 26—Freedom of Information Act 1982 (Cth)(opens in a new window).

Review of decision under:

Victorian FOI law

A person may ask for a decision to be reviewed if the agency refuses to allow access (or defers access). The review is carried out by the Freedom of Information Commissioner. The commissioner may also review a matter where the agency has refused to waive or reduce an application fee.

See Office of the Victorian Information Commissioner—Complaints(opens in a new window)

What cannot be reviewed

The Commissioner is not able to review decisions:

  • about exempt documents
  • made by a minister or by the principal officer of an agency.

A person will have to seek to have these decisions reviewed at VCAT.

See s. 49A—Freedom of Information Act 1982 (Vic)(opens in a new window) and Office of the Victorian Information Commissioner—Complaints(opens in a new window).

Time limit

The person has 28 days to apply to the Freedom of Information Commissioner for a review of the decision. Time starts on the day after the person gets a written decision denying access.

The Commissioner may allow for an extension of time if satisfied that the delay is due to some act or omission by the agency.

Appealing a decision to VCAT

If the decision is one that cannot be reviewed by the Freedom of Information Commissioner, the person can apply to VCAT for a review.

See Part Vl, ss. 46, 47, 50—Freedom of Information Act 1982 (Vic)(opens in a new window) and VCAT—Freedom of Information Act 1982.

Time limit

An applicant has 60 days to apply to VCAT for a review of a decision. The time is calculated from the day that the person is notified of a decision.

If the agency has not responded to an application, the decision will be deemed to have been made on the last day for application to be made.

See ss. 52, 53—Freedom of Information Act 1982 (Vic)(opens in a new window).

Cost

In most cases the cost of lodging an FOI application for review at VCAT is 28.7 penalty units. No fee will be charged if the review is about:

  • a government agency that failed to respond to an FOI request
  • a document that has information about the personal affairs of the applicant.

VCAT may agree to a fee waiver if the person is experiencing financial hardship.

Generally each party pays their own costs.

See s. 5—Freedom of Information Act 1982 (Vic)(opens in a new window) and Value of penalty units.

Commonwealth FOI law

If a person is denied access to documents that have been requested under FOI law the person can apply to have the decision reviewed. This review can be done internally, or by the Office of the Australian Information Commissioner.

Internal reviews can be performed where:

  • an application is refused
  • the agency has refused to waive or reduce costs in the case of financial hardship, or
  • an agency has refused a request to amend personal records held by the agency.

See ss. 26, 29, 31, 51D—Freedom of Information Act 1982 (Cth)(opens in a new window).

Internal review

If access to information is refused or deferred by an agency, the applicant can ask to have that decision reviewed internally. This means that the decision will be looked at by a different agency officer who is more senior to the former decision maker. The internal review decision maker has to make the review within 30 days. This can be done if the decision is defined as an 'access refusal decision'.

An access refusal decision is one where:

  • a request to give access to a document is refused
  • access is denied in part to a request for documents
  • access is allowed but not granted
  • a decision about access is deferred
  • there is a dispute about the cost of accessing documents
  • an application for the amendment of a document is refused
  • an application for an annotation of a document is refused
  • a decision is refused on the grounds of personal privacy

See ss. 53A, 54C—Freedom of Information Act 1982 (Cth)(opens in a new window).

Time limits

In most cases an application for internal review of a decision must be made in writing within 30 days after the date that the applicant is notified of the original decision.

The agency can decide to grant an extension of this time.

Once an application is received the internal reviewer must make a decision within 30 days of getting the application for review. The reviewer must give reasons for their decision. If no decision is given within this 30 day period the original decision is deemed to be affirmed.

See ss. 54B, 54C, 54D—Freedom of Information Act 1982 (Cth)(opens in a new window).

Review by Office of the Australian Information Commissioner (OAIC)

A person (or another applying on their behalf) can apply to the OAIC if:

  • their access has been refused
  • an internal reviewer has refused access
  • an internal reviewer has refused to grant more time to apply
  • a decision to grant access affects a 3rd party
  • a decision has been made to grant access
  • no decision has been given by internal reviewer within the 30 day period

See ss. 54K, 54L, 54M,—Freedom of Information Act 1982 (Cth)(opens in a new window).

How OAIC application is to be made

Applications to the OAIC must be in writing and must:

  • provide an address or email for OAIC response
  • include a copy of the notice (giving reasons for the decision).

The OAIC office is required to help someone who needs assistance making the application.

In most cases any 3rd party who may be affected by the decision has to be notified by the agency or minister if an application for OAIC review is made.

See ss. 54N, 54P, 54Q—Freedom of Information Act 1982 (Cth)(opens in a new window).

Time limits

An applicant has 60 days to apply to the OAIC for review. Time is calculated from the day after the decision was given. A different time limit (30 days after decision) applies to applications where access was given.

The OAIC may extend the time limit.

See ss. 54S, 54T—Freedom of Information Act 1982 (Cth)(opens in a new window).

Discretion not to review a decision

The OAIC has discretion not to review a decision. The OAIC has to notify the parties if it uses this discretion.

See ss. 54W, 54X—Freedom of Information Act 1982 (Cth)(opens in a new window).

Decision by OAIC

The OAIC may decide based on a review of the documents or may choose to hold a hearing. The OAIC may refer a matter to the Federal Court on a question of law.

See ss. 54W, 54X—Freedom of Information Act 1982 (Cth)(opens in a new window).

Tribunal review

A person may apply to the Administrative Appeals Tribunal about decisions made by the OAIC.

See Part VllA—Freedom of Information Act 1982 (Cth)(opens in a new window).

Complaints

A person can make a complaint to the OAIC about the way that their FOI application is handled. They can do this at any time.

The OAIC may transfer a complaint to the Commonwealth Ombudsman if it believes that the complaint can be more effectively dealt with by them. A person can also complain directly to the ombudsman about the way their FOI matter has been handled.

See ss. 70, 74—Freedom of Information Act 1982 (Cth)(opens in a new window) and Commonwealth Ombudsman.

More information

Legislation

Freedom of Information Act 1982 (Vic)

  • s. 25A—when requests for amendment are refused, application to VCAT
  • s. 27—reasons, review rights and time limits to be given
  • s. 46—where request is refused
  • s. 47—the agency or minister must amend the document if VCAT orders this
  • s. 50—applications to VCAT for review
  • s. 52—time limit for applying for a VCAT review

See Freedom of Information Act 1982 (Vic)(opens in a new window).

Freedom of Information Act 1982 (Cth)

  • s. 26—reasons and other particulars of decision to be given
  • s. 29—charges
  • s. 31—decision to impose a charge is subject to internal review
  • s. 53A—explains what an 'access refusal decision' is
  • s. 53B—explains what an 'access grant decision' is
  • s. 54—internal review of access refusal decision
  • s. 54B—application for internal review and time limits
  • s. 54C—internal review decision and time limits
  • s. 54D—deeming provision affirming original decision if no review is made within 30 days
  • s. 54L—OAIC reviewable decisions where access denied
  • s. 54M—OAIC reviewable decisions where access has been granted
  • ss. 54P, 54Q—3rd parties to be notified of request for OAIC review
  • s. 54S—time limits for applying for OAIC review
  • s. 54T—when time limit may be extended
  • s. 54W, 54X—OAIC discretion not to review
  • Part VllA—review by the AAT
  • s. 70—complaints to the OAIC
  • s. 74—transfer of a complaint to the ombudsman

See Freedom of Information Act 1982 (Cth)(opens in a new window).

Reference

Office of the Victorian Information Commissioner

See Office of the Victorian Information Commissioner—Complaints(opens in a new window)

Victorian Civil and Administrative Tribunal (VCAT)

See:

Office of the Australian Information Commissioner

See:

Commonwealth Ombudsman

A person can complain to the Commonwealth Ombudsman if they are unhappy with the way their FOI application has been dealt with.

See:

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