From the Executive Director

Beware of relying on OVIC decisions for guidance - they might have been set aside or otherwise overturned or varied by VCAT, and there is no easy way of knowing.

As most of you will be aware, since the introduction of FOI Commissioner review in 2012, agencies have had the ability to seek review from the Victorian Civil and Administrative Tribunal ("VCAT") of most Commissioner decisions under the Freedom of Information Act 1982 (Vic) ("FOI Act").  That right of review has continued with the introduction of the Office of the Victorian Information Commissioner from the end of 2017.

This means that agencies which are not satisfied with decisions of the Information Commissioner or Public Access Deputy Commissioner ("Commissioners") can seek review from VCAT.  There has been an increasing trend in agencies seeking review of Commissioners' decisions from VCAT.  

Further, based on published decisions from VCAT under the FOI Act, and our own anecdotal experience in running VCAT review applications made by agencies, there have been an increasing number of cases in which the VCAT has decided differently to the Commissioners.  This includes cases which have not only gone to a final hearing (where VCAT has made a different decision), but final determinations made along the way in resolving cases where Commissioners' decisions have been set aside by VCAT.  

There is a provision in the FOI Act which requires the Information Commissioner to report to the Integrity and Oversight Committee of Parliament if there have been 4 or more successful applications to VCAT or the Supreme Court by agencies against decisions of the Commissioners in a 12 month period.  Information obtained by our office from OVIC under FOI earlier this year confirmed that in July 2021, the Information Commissioner wrote to the Integrity and Oversight Committee of Parliament reporting that there had been four successful applications for review made by agencies to VCAT in the preceding twelve months.

• Melbourne Health v OOZ [2021] VAT 623;
• Monash University v Naik [2021] VCAT 557 - which considered two applications in one proceeding;
• Commissioner of State Revenue v Tucker [2021] VCAT 238.

We acted for the successful applicant agencies in the first two matters.

But these are not the only cases commenced by agencies where a final VCAT determination has been made which is different to the Commissioners' decisions.

A danger arises, therefore, to the extent that agencies (or any other person) seeking guidance from decisions of the Commissioners might seek to rely on those decisions appearing on the OVIC website.  There is a danger of being misled by some of those decisions where a different decision was made by VCAT on review.  This is because there is nothing on the OVIC website or noted on published Commissioners' decisions to indicate that a different decision had been made by VCAT after an agency sought review of the Commissioners' decisions.  See for example the Commissioners' decisions which relate to those mentioned above:

• AN6 v Melbourne Health
• AK4 v Monash University
• AO7 and State Revenue Office 

The absence of any notation to indicate that VCAT made a different final determination gives rise to a risk of those Commissioners' decisions being misleading.

Accordingly, agencies should not just blindly follow Commissioners' decisions without also checking to seek if VCAT has made a different decision.  You need to also be aware that even if you did that, there is no way at present which is readily available to the public to check to see if Commissioners' decisions were set aside where they did not go to final hearing.

URGENT: STOP PRESS

FOI Solutions expects to receive from the Supreme Court any day now an important decision about access charges.  The decision is expected to affect how every agency deals with access charges under the FOI Act and associated regulations.  Keep a look out for our Important Update and for an upcoming training session on our website about what it will mean for your agency.