What can the Victorian Civil and Administrative Tribunal (VCAT) review?
VCAT can review:
- a ‘deemed refusal’ of an agency (where the agency has not made a decision in relation to your FOI request within the statutory time limit);
- a ‘deemed refusal’ of the FOI Commissioner (where the FOI Commissioner has not completed your review within the required period);
- decisions of a principal officer or a Minister refusing to grant access to a document in accordance with a request;
- decisions of the FOI Commissioner refusing to grant access to a document in accordance with a request;
- decisions by agencies refusing access to a document if the FOI Commissioner has determined not to accept or to dismiss the application for review;
- decisions by agencies to exempt documents as Cabinet documents or on the grounds of national security; and
- decisions about access charges.
You have 60 days to apply to VCAT for a review from the date you received written notice of an agency’s decision. There is no time limit on applying to VCAT in the case of an agency’s deemed refusal.
There may be applicable charges for a VCAT review. For further information about VCAT appeals, please visit the VCAT website.
Appealing a decision of the FOI Commissioner
You may be able to appeal to VCAT for a review of the FOI Commissioner’s review decision.
An appeal cannot be made to VCAT regarding the outcome of a complaint.
VCAT can review decisions of the FOI Commissioner to refuse or defer access to a document in accordance with a request.
You have 60 days to apply to VCAT for a review from the date you received written notice of the FOI Commissioner’s decision.
You can also apply to VCAT for a review if the FOI Commissioner has not completed your review within the 30 day timeframe (or any longer timeframe to which you have agreed). VCAT will treat this as a decision of the FOI Commissioner to refuse access to the document, defer access or not amend personal information, as the case requires (a “deemed refusal”). There is some uncertainty whether a time limit applies to an application to VCAT from a deemed refusal of the FOI Commissioner. Until that is clarified, the safest course is to apply to VCAT within 60 days of the date you should have received the FOI Commissioner’s decision.
VCAT can call upon the FOI Commissioner for assistance or the Commissioner can make an application to assist VCAT.
Who else can apply to VCAT for review of an FOI decision?
Agencies can apply to VCAT for a review of the FOI Commissioner’s decision.
A person who is the subject of information in a document referred to in a document affecting personal privacy (section 33(3) of the FOI Act), or in the case of a deceased person, that person’s next-of-kin, for a review of a decision to disclose that document.
A business, commercial or financial undertaking for a review of a decision to disclose a document referred to in section 34 of the FOI Act (i.e. trade secrets) contrary to the undertaking’s view.
A person who received a decision of a principal officer under section 12(2) of the FOI Act that is adverse to the person’s claim that a statement published by the principal officer does not specify a document as described in section 8(1) or 11(1) of the FOI Act that was required to be specified in the statement.