Important Update

Information Commissioner cannot amend FOI requests

OVIC can't amend requests

The Victorian Civil and Administrative Tribunal appears to have accepted that in a review application made to the Office of the Victorian Information Commissioner ("OVIC"), the OVIC cannot amend the FOI request or treat the FOI request as having been amended to be something different to the request on which the agency had made its decision.

 

In Victorian Legal Services Commissioner v Grahame [2019] VCAT 1878 the FOI applicant was Mr Grahame, a barrister against whom a complaint had been made to the Victorian Legal Services Commissioner ("VLSC").    Mr Grahame sought access to 3 categories of documents:

  1. A Report of the Ethics Committee of the Victorian Bar to the VLSC.
  2. Any draft or interim reports of the Ethics Committee.
  3. All correspondence between the VLSC and the Committee in relation to the Complaint or Report.

The VLSC refused access to the documents sought without searching for documents and processing the request on the basis that, under s 25A(5) of the Victorian FOI Act, the documents would all be exempt and there would be no obligation to provide partial access.

 

When purporting to seek review of the VLSC decision from the OVIC, Mr Grahame stated in the material accompanying his application for review that he no longer sought access to documents other than the Report of Ethics Committee.  The OVIC treated the review as being limited to the Report.  That is, as if Mr Grahame's request had been amended or "narrowed" to only seek the Report and not the original 3 categories of documents.

 

The OVIC determined that it believed s 25A(5) of the FOI Act did not apply and directed that the VLSC was required to "process the request" - that is, the amended or narrowed request for the Report.

 

The VCAT accepted submissions from FOI Solutions that the scope of the request could not be amended by the OVIC having regard to provisions in the FOI Act:

  • Section 49A(1)(a) of the FOI Act provides that an applicant may apply to the Information Commissioner for review of ‘a decision of an agency … refusing to grant access to a document in accordance with a request’  - in this case the whole original request as made to and dealt with by the VLSC.
  • Section 49F of the FOI Act then provides that the Information Commissioner ‘may review the decision that is the subject of the application for review’  - in this case the decision of the VLSC as to the whole original request.
  • Section 49OA of the FOI Act provides that the Information Commissioner’s task is to determine whether to refuse to grant ‘the request under s 25A(5)’
  • Section 49P(1) of the FOI Act provides that, after conducting a review, ‘the Information Commissioner must make a fresh decision on the original application’

If you would like to understand what that might mean for any current or future matters your agency may have before the OVIC, please do not hestiate to contact us.