Unreasonable diversion decisions can be made "out of time"

On 19 July 2019 the Supreme Court of Victoria made an important ruling as to timing about when an agency can refuse access to documents on the basis that processing the request would substantially and unreasonably divert the agency's resources.

Under s 21 of the Freedom of Information Act 1982 (Vic) ("FOI Act") an agency must notify an applicant of its decision on a request no later than 30 days after a valid request was received (subject to certain extension possibilities). If an agency does not comply with that timing requirement it is taken to have made a decision refusing access to documents in accordance with a request. Under s 53 of the FOI Act such a "deemed" refusal decision is reviewable by the Victorian Civil and Administrative Tribunal ("VCAT").

In Chopra v Department of Education and Training [2019] VSC 488, the Supreme Court has confirmed that an agency can still make a decision to refuse access to documents on the basis that processing a request would substantially and unreasonably divert its resources under s 25A(1) of the FOI Act even if:

(a) the 30 day statutory decision and notification period in s 21 has passed; and

(b) the applicant has commenced review proceedings at VCAT seeking review of a deemed refusal arising due to delay.

As readers may be aware, a decision cannot be made to refuse access under s 25A(1) of the FOI Act unless a notice has first been provided by the agency to the FOI applicant in compliance with s 25A(6) of the FOI Act. The Supreme Court reiterated that requirement as a necessary pre-condition to refusing access under s 25A(1) and confirmed that the requirement to issue such a notice is not limited to occurring within the 30 day period for decision making and notification prescribed in s 21.

The Court confirmed that:

an agency can issue a s 25A(6) notice and is not limited to doing so within the 30 day decision making and notification period
an agency is not precluded from initiating consultation under s 25A(6) more than 30 days after receiving a request
a notice under s 25A(6) can even be issued even if the applicant has applied to VCAT for review of a deemed refusal decision arising from delay in dealing with the request
a decision to refuse access under s 25A(1) may be made after the 30 day decision and notification period had expired, and even if the applicant has applied for review by VCAT of a deemed refusal, provided the s 25A(6) process has properly been complied with.

In so concluding, the Court accepted the "plainly correct" reasoning in an earlier VCAT decision by Vice President Judge Lacava in Lovell v Department of Human Services [2010] VCAT 1965 in which FOI Solutions acted for the Department (subsequently applied in Smeaton v Victorian WorkCover Authority [2012] VCAT 434, [14]).

The Court also noted that if the respondent agency has not complied with s 25A(6), and a deemed refusal is before the VCAT, the VCAT cannot refuse access under s 25A(1).

What this decision means as a matter of practicality is that although agencies should strive to make decisions within the statutory time frame in the FOI Act, the failure to do so does not preclude the agency from refusing access under s 25A(1) of the FOI Act where that is appropriate, provided the necessary notice and conditions under s 26A(6) have first been met - even if this occurs whilst a "deemed refusal" review proceeding has been commenced by an applicant at the VCAT.

If you have any queries about the legal effect of this decision, please do not hesitate to contact us.

Important Update

03/2019 · 23 Jul 2019

In this issue