Supplement to the FOI Commissioner Note

The Acting FOI Commissioner recently published a note in his FOI in Practice series reporting on the outcome of a recent jurisdiction hearing in Cochrane v Melbourne Polytechnic (Z25/2017) in which FOI Solutions acted for the respondent agency (click here to view the FOI Commissioner Note).

It is important for agencies to be aware of what VCAT did in that case and, more importantly, what VCAT did not do so as to avoid a misleading impression of the effect of the procedural orders made in that case.

Application for review of 2 decisions

The applicant had attempted to seek review in one application to VCAT of two decisions taken to be made by the Acting FOI Commissioner. Those decisions arose due to the required period in s 49J(2) of the Freedom of Information Act 1982 (“FOI Act”) having expired. That is, two decisions were taken to be made by the Acting FOI Commissioner refusing access on the same day and in relation to almost identical subject matter.

The VCAT found that the need to lodge two separate applications for review was a procedural requirement compliant with which it had a discretion to waive under s 126(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”). The VCAT then went on to find that in the circumstances of the present case the discretion should be exercised. In doing so it referred to factors in that case, which it took into account.

That order and the findings in that case does not mean that applicants to VCAT will automatically be able to bundle together into one application for review multiple decisions by the Acting FOI Commissioner (whether actual refusal decisions or decisions taken to be made under s 49J(2) of the FOI Act). It will only be permitted if the VCAT allows it in the particular circumstances.

Delayed applications for review

The respondent had initially argued that under s 52(5) of the FOI Act the applicant had 60 days to commence an application for review from the date on which a decision was under s 49J(2) of the FOI Act taken to be made by the Acting FOI Commissioner to refuse access. However, at the hearing, the agency submitted that an extension of time for making that application ought to be granted by the VCAT to the applicant under s 126 of the VCAT Act to enable the proceeding to continue smoothly.

The Acting FOI Commissioner retained Senior Counsel to oppose such an order, believing it was not required.

The Tribunal made an order under s 126(1) of the VCAT Act that:

“To the extent (if necessary) that it may be required, if at all under s 126 of the VCAT Act the time within which the application to the Tribunal for review must have been lodged is extended to the date on which it was lodged to the Tribunal.”

The Tribunal declined to make a ruling on whether the 60 day period for making an application for review to the Tribunal under s 52(5) of the FOI Act applied for refusal decisions taken to be made by the FOI Commissioner under s 49J(2).

The Acting FOI Commissioner referred to cases establishing that no 60 day time limit for applicants to seek review of agency deemed refusals under s 53. He also argued that the regime in s 49J was sufficiently similar to suggest there should be no 60 day time limit exists for applicants to seek from VCAT review of refusal decisions taken to be made by the FOI Commissioner because of delay.

Despite the Implication in the Acting FOI Commissioner’s note, the VCAT did not rule on whether the cases about the non-application of the 60 day period to seeking review of agency deemed refusals under s 53 also applied to decisions taken to be made by the FOI Commissioner under s 49J of the FOI Act.

It also did not rule on our view that the regime under s 49J is different to the agency deemed refusal regime in s 53. There are significant differences between the words in the two provisions and their statutory context to suggest that they are different. The issue remains undecided.

If you require any further information about the impact of this procedural ruling please don’t hesitate to contact us.