From the Executive Director

Recent decisions from VCAT in which we have been involved on behalf of agency clients have raised some interesting tidbits of information which may be of interest to Victorian FOI decision makers.  They include the following matters.

Partial access

As you may remember, partial access need only be contemplated by an agency where all 3 requirements of s 25 of the Freedom of Information Act 1982 (Vic) ("FOI Act") have been satisfied.  One of the most often forgotten requirements is that partial access needs only to be provided if the applicant's request states (or there are subsequent indications) that they are willing to obtain access to an edited copy of the relevant document with exempt or irrelevant matter deleted.

The VCAT recently referred with approval to an earlier decision reiterating that where the request for access did not confirm that access to an edited copy of the documents was sought, that is enough to confirm that partial access is not sought.  That is, partial access need not be contemplated by the agency if the FOI request is silent on the matter.  The VCAT in this case was constituted by the President, Her Honour Justice Quigley: Davies v Victoria Police [2022] VCAT 713, [90].

OVIC must deal with original request

In the Davies case referred to, Justice Quigley also accepted as persuasive an earlier decision of the Tribunal to the effect that during review by the Office of the Victorian Information Commissioner ("OVIC"), an applicant cannot amend their request for access, including by stating that they now seek partial access during the OVIC review when originally they did not.  

During an OVIC review, the applicant must be held to the terms of the original request and any decision by OVIC must be in relation to the original request: Davies v Victoria Police [2022] VCAT 713, [91]-[92].  Therefore, although OVIC might use the strategy of persuading an applicant to now seek partial access with a view to achieving an agreed outcome, if the matter does not informally resolve and the OVIC must proceed to make a decision, such decision must be made on the original application (ie request).

OVIC only has limited powers to remit a matter back to the agency

In another case, the Tribunal made it clear that OVIC does not have an unfettered ability to remit a matter back to an agency to decide the matter again: Davis v Department of Health [2022] VCAT 718, [131].  

In making that comment, the Tribunal referred expressly to s 49L of the FOI Act which sets out in detail the limited circumstances in which the OVIC can ask the agency to refer the matter back to the agency for reconsideration.  That is, an agency can only be asked to reconsider a matter if:

• the Commissioner made preliminary inquiries under s 49K; or
• required an agency to conduct a sample search or further sample search; or
• issued a notice to produce; and
• it appears reasonably likely to the Commissioner that the agency will be able to make a fresh decision in a way that is satisfactory to the applicant and lawful.

Therefore, for example, if your agency made a decision to refuse access without processing a request, and OVIC disagrees, OVIC might not be able to refer the matter back to your agency for reconsideration unless s 49L is satisfied.

If you have any queries about how any of these decisions might affect your agency or any current matters you have before the OVIC, please do not hesitate to contact us.