the solution

From the Executive Director

Is mediation the key to clearing VCAT backlog of FOI Cases?

As many of you would be aware the Victorian Civil and Administrative Tribunal ("VCAT") had between about March 2023 and May/June 2025 developed a huge backlog of applications for review relating to decision under the Freedom of Information Act 1982 (Vic) ("FOI Act").  Anecdotally, that figure was in the hundreds.  Our firm had at least 50 cases which were on hold.

 

The cause of the delay was because of the absence of available members to progress any VCAT FOI review applications.   The standard order that was being made for about two years at the first directions hearing held by the VCAT was that the proceeding was adjourned to a date to be determined due to the absence of available members to hear the matter.

 

The Tribunal was making rare exceptions in progressing cases where one of two circumstances existed:

(a) one of the parties could persuade the VCAT member of immediate urgency for a matter to proceed;

(b) there was some strong public interest reason why the matter should proceed.

 

An example of where this exception was made out is where FOI requests were made by Victorian Members of Parliament.  Something which some FOI applicants were particularly miffed about as they could not see why an MP's FOI matter should be progressed first before their matters.

 

It appears that in recent weeks, since May 2025, that VCAT has come up with an approach using the alternative dispute resolution method of mediation to seek to chip away at the backlog and at least begin to resurrect adjourned matters.

 

VCAT is beginning to make standard orders along the following lines (subject to minor variations):

  1. The VCAT applicant, whether it is an agency or the FOI applicant, must provide a statement of their position within a timeframe of about 3 weeks.  If the VCAT applicant is also the FOI applicant, they have to indicate whether they wish the proceeding to continue, why they seek documents, and why they disagree with the decision under review.  
  2. The other party(ies) must then provide their statement of position within 3-4 weeks of receiving the VCAT applicant's material.
  3. If there are actual documents in dispute, the agency in question must provide them to VCAT confidentially.
  4. The orders then foreshadow that a mediation will be scheduled.
  5. What happens next is that as soon as the VCAT applicant confirms they wish to proceed, even before the VCAT receives all of the position statements, the matters are being listed for mediation - even if both parties agree that mediation is not the answer!! 

It will be interesting to see how successful this avenue is in reducing the backlog.  Cleary in some instances the passage of time is such that the FOI applicant no longer cares - older matters are more likely to resolve even without having to go to mediation in such circumstances.

 

We would welcome hearing from any of the recipients of this newsletter about what their experience has been at VCAT with mediation as a device for dealing with FOI Act matters.

 

It is difficult to envisage circumstance where mediation will be helpful where, for example, the whole issue might not about whether documents should or could be released and whether they are exempt, but rather whether an FOI request should be processed in the first place.  

 

Mediation is potentially only going to work well if the parties are open to thinking laterally, including addressing what FOI applicants might have as an underlying gripe or reason for making the FOI request in the first place, which could result in constructive solutions outside the strict parameters of the FOI process.

 

We would really love to hear from you.

 

Best of luck in FOI Land.

 

Mick Batskos

Executive Director