the solution

From the Executive Director

Possible gap in VCAT's powers to require agencies to process FOI requests

A potentially serious gap appears to exist in relation to whether VCAT can require a Victorian agency to process an FOI request in certain circumstances.   The issue arises where the following has occurred under the Freedom of Information Act 1982 (Vic) ("VCAT Act"):

  1. The agency has made a decision to refuse to process a request (eg under s 25A(1) of the FOI Act - substantial and unreasonable diversion).
  2. That decision was made within the statutory timeframe or, at least, before the applicant sought review of a deemed refusal from VCAT.
  3. The agency's decision was the subject of review by the Office of the Victorian Information Commissioner and the Commissioner made a decision (actual or deemed due to delay: s 49J, FOI Act) to refuse access on the same basis.   That is, without the agency being required to process the request.
  4. The FOI Applicant then seeks review of the Commissioner's decision from VCAT.

In that situation, the decision under review is that of the Commissioner, not the agency.  This is important to recognise when you consider what orders VCAT could make if the applicant was successful in it's review application.

 

Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") gives VCAT the power to:

(a) affirm the decision under review;

(b) vary the decision under review;

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

 

Similarly, s 51A(1) of the VCAT Act gives the Tribunal power at any time in a proceeding for review to "invite the decision-maker to reconsider the decision."

 

Remembering that the decision-maker in the relevant scenario is the Commissioner, and the decision under review is that of the Commissioner, it is difficult to see how the VCAT can invite the agency to reconsider the matter.  It is not the decision-maker whose decision is under review and so, in our view, the agency cannot be required or invited to reconsider the decision of the Commissioner.

 

We are presently conducting some VCAT cases where the issue arises and may get a decision about this soon.