Freedom of Information Act 1982 (review)

This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.

This page reflects changes to the law from 1 September 2017. The circumstances in which you may apply to VCAT for review of FOI decisions have changed.

Cases we can hear

FOI requests made from 1 September 2017

Read the decision letter carefully. It should include information about your review rights – either to the Victorian Information Commissioner (before 1 September 2017 known as the FOI Commissioner) or, rarely, to VCAT.

If on or after 1 September 2017 you made an FOI request for documents from a Victorian Government Department, agency or minister and you are dissatisfied with the decision you must apply for a review to the Information Commissioner.

Usually the Commissioner's decision resolves the issue. If you are dissatisfied with the Commissioner's decision you may be able to apply to VCAT for review of that decision. The parties will be you and the original department, agency or minister, not the Commissioner.

The main situations where an applicant may apply direct to VCAT – having made an FOI request to a department or agency – are where:

• the department, agency or minister fails to decide the request (within a 30 day time limit, subject to agreed extensions). Under the FOI Act, the request is then taken to be refused. However, you can decide to wait for the agency, department or minister to make its decision; or
• you seek review a decision about charges for accessing documents if the Commissioner has certified that the matter is one of sufficient importance for VCAT to consider.

Applications for review at VCAT may also be made by:

• a person who is opposed to the release of documents containing information relating to their personal affairs to another person, under the FOI Act, unless the person previously consented to the release
• a business that is opposed to the release of documents containing information relating to its trade secrets, under the FOI Act, unless the company previously consented to the release
• a person who seeks amendment of documents held by a department or agency concerning them
• a government department or agency that is dissatisfied with the decision of the Freedom of Information Commissioner for documents to be released.

See section 50 of the FOI Act for all applications you can make.

FOI requests made before 1 September 2017

If you have made a Freedom of Information (FOI) request for documents from a Victorian Government Department or agency and you are dissatisfied with the decision, you may be able to apply to VCAT. But in most cases, if a department or agency refuses to provide or amend documents in whole or in part, you must apply for a review to the Information Commissioner (previously known as the Freedom of Information Commissioner.

Usually the Commissioner's decision resolves the issue. If you are dissatisfied with the Commissioner's decision you may be able to apply to VCAT for review of that decision. The parties will be the applicant and the original department or agency. The Commissioner will not usually be a party.

You can also apply to VCAT to review a decision about charges for accessing documents if the Commissioner has certified that the matter is one of sufficient importance for VCAT to consider.

The main situations where an applicant may apply direct to VCAT – having made an FOI request to a department or agency – are where:

• the department or agency fails to decide the request (usually within a 45 day time limit). Under the FOI Act, the request is then deemed to be refused. However, the person can decide to wait for the agency or department to make its decision; and
• where (rarely) the principal officer of a department or agency, such as chief executive officer, makes the FOI decision.

Applications for review at VCAT may also be made by:

• a person who is opposed to the release of documents containing information relating to their personal affairs to another person, under the FOI Act
• a business that is opposed to the release of documents containing information relating to its trade secrets, under the FOI Act
• a person who seeks amendment of documents held by a department or agency concerning them
• a government department or agency that is dissatisfied with the decision of the Freedom of Information Commissioner for documents to be released.

Cases we cannot hear

The Commissioner deals with complaints about how departments and agencies deal with FOI requests, including complaints about the department or agency not identifying all relevant documents. The Commissioner's decisions about complaints are not reviewable at VCAT.

Legislation that gives VCAT the power to hear these applications

• Section 50 of the Freedom of Information Act 1982

If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.

Time limits

Before 1 September 2017

You should apply to VCAT within 60 days of becoming aware of the Information Commissioner's decision you disagree with.

If a decision is taken to have been refused because either the Victorian Government department, agency or minister, or the Information Commissioner has not decided a request within relevant timelines, you may apply to VCAT for review of the decision at any time before you receive the decision.

After 1 September 2017

As above, except Victorian Government departments, agencies or ministers should apply to VCAT within 14 days of becoming aware of the Information Commissioner's decision.

What can VCAT order?

VCAT can:

• confirm the decision
• make a different decision. This may include ordering that some or all of the documents be provided to the applicant.

Apply

We can explain the application process and what the form is asking you for. Contact us to get support.

We cannot give you legal advice. This means we cannot tell you what to write in your application or recommend how to get the outcome you want.

Seek legal help if you are unsure about your options or need advice about your claim.

Do I need a lawyer or professional representative?

You do not need to have legal or other professional representation to appear at VCAT. If you wish to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission. Be aware that the regulatory body in most cases uses legal representation.

Find legal services that may be able to assist you.

Access and privacy

VCAT hearings and files are usually public.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.