Victorian Numbered Acts Victorian Numbered ActsAfter Part VI of the Principal Act insert —
(1) A complaint may be made to the Freedom of Information Commissioner in accordance with this Part about any of the following—
(a) an action taken or failed to be taken by an agency in the performance or purported performance of the agency's functions and obligations under this Act, including a decision by an agency that a document does not exist or cannot be located;
(b) a delay by a Minister in dealing with a request;
(c) an action taken or failed to be taken by a Minister in making a decision under section 24 deferring access to a document;
(d) an action taken or failed to be taken by a Minister in making a decision to disclose a document that is claimed to be exempt under section 33 ;
(e) an action taken or failed to be taken by a Minister in making a decision to disclose a document that is claimed to be exempt under section 34.
(2) A complaint must—
(a) be in writing; and
(b) set out the nature of the complaint; and
(c) identify the agency or Minister concerned.
(3) A person who may make a complaint may include—
(a) the applicant who has made a request to which the complaint relates; and
(b) a person or the next-of-kin of a deceased person, if the matter complained of relates to a decision to disclose a document referred to in section 33 containing information relating to the personal affairs of the person or deceased person; and
(c) a business, commercial or financial undertaking, if the matter complained of relates to a decision to disclose a document referred to in section 34 containing information relating to matters of a business, commercial or financial nature of that undertaking.
(4) A complaint must be made within 60 days after the action or conduct complained of occurred.
(1) The Freedom of Information Commissioner may—
(a) accept a complaint to the extent that the complaint relates to—
(i) a matter referred to in section 61A(1)(a); or
(ii) a matter referred to in section 61A(1)(b) to (e); or
(b) determine not to accept a complaint or dismiss a complaint at any stage.
(2) Without limiting subsection (1)(b), the Freedom of Information Commissioner may determine not to accept a complaint or may dismiss a complaint on any of the following grounds—
(a) the action or failure by an agency was not in the performance by the agency of its functions or obligations under this Act;
(b) the complainant has the right to make a complaint about the action to another body and has not exercised that right;
(c) the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
(d) the complainant does not have a sufficient interest in the subject-matter of the complaint;
(e) the complainant has failed to co-operate with the Commissioner in dealing with the complaint without reasonable excuse;
(f) the complaint was made after the end of the time permitted to make a complaint;
(g) the Commissioner considers that a complaint is not appropriate in the circumstances;
(h) the Commissioner is unable to contact the applicant following reasonable attempts to do so.
(3) The Freedom of Information Commissioner must dismiss a complaint if the subject-matter of the complaint has been, or could be, dealt with by an application for review by the Freedom of Information Commissioner or the Tribunal.
(4) If the Freedom of Information Commissioner dismisses a complaint, the Commissioner must give written notice to the complainant setting out the grounds for dismissing the complaint.
(1) This section applies if the Freedom of Information Commissioner considers that a complaint could be dealt with more effectively or appropriately by another person or body who or which has jurisdiction to deal with the complaint.
(2) If the Freedom of Information Commissioner considers it appropriate to do so, the Commissioner, after consulting with the person or body, may—
(a) decline to deal with the complaint; and
(b) refer it to the person or body.
(3) If the Freedom of Information Commissioner refers a complaint to a person or body under this section, the Commissioner must give notice in writing to the complainant.
(4) The notice must set out the decision of the Freedom of Information Commissioner and the reasons for the decision.
(1) If the Freedom of Information Commissioner accepts a complaint, the Commissioner must notify the principal officer of the agency or the Minister (as the case requires) and the complainant in writing.
(2) The notice must be accompanied by a copy of the written complaint.
(3) The Freedom of Information Commissioner may also notify another person of the complaint if the Commissioner believes that the rights or interests of the person may be affected by the subject-matter of the complaint.
An agency or Minister to which or whom a complaint relates must co-operate with the Freedom of Information Commissioner in dealing with the complaint.
The Freedom of Information Commissioner must deal with a complaint in private.
(1) If the Freedom of Information Commissioner accepts a complaint, the Commissioner may—
(a) conduct preliminary inquiries into the complaint; and
(b) consult with the agency to which, or the Minister to whom, the complaint relates and the complainant; and
(c) consult with any other person if the Commissioner believes that the rights or interests of the person may be affected by the subject-matter of the complaint—
in order to determine—
(d) the material facts and issues in relation to the complaint; and
(e) whether the complaint can be resolved informally.
(2) If the Freedom of Information Commissioner determines that a complaint can be resolved informally, the Commissioner must take reasonable steps to resolve the complaint.
(1) If a complaint cannot be resolved informally, the Freedom of Information Commissioner must use his or her best endeavours to conciliate the complaint.
(2) If a written agreement is reached between the agency or the Minister (as the case requires) and the complainant, the Freedom of Information Commissioner must resolve the complaint in accordance with the agreement.
(1) This section applies if—
(a) the Freedom of Information Commissioner has tried but failed to conciliate a complaint; and
(b) the Freedom of Information Commissioner is satisfied that there is no reasonable likelihood that the complaint will be resolved by conciliation.
(2) The Freedom of Information Commissioner must allow the complainant and the agency or the Minister (as the case requires) a reasonable opportunity to make submissions in relation to the complaint, whether orally or in writing.
(3) The Freedom of Information Commissioner must deal with the complaint with as little formality and technicality as possible.
(4) If, after considering any submissions, the Freedom of Information Commissioner considers that further information is required in order for the Commissioner to deal with the complaint, the Commissioner may ask the agency or Minister in relation to whom the complaint relates to—
(a) produce a document to the Commissioner (other than a document that an agency claims to be exempt under section 28 or 29A); or
(b) provide information to the Commissioner or the Commissioner's representative (other than information that if included in a document would make that document exempt under section 28 or 29A).
(1) This section applies if—
(a) a prescribed agency fails to produce a document on a request under section 61I; and
(b) the Freedom of Information Commissioner considers that the complaint relates to a wilful or flagrant breach of the agency's obligations under this Act; and
(c) the Freedom of Information Commissioner considers that it is necessary and appropriate to compel the production of the document in order to deal with the complaint.
(2) The Freedom of Information Commissioner may by notice (a production notice ) require the prescribed agency to produce the document to the Commissioner.
(3) A production notice cannot require production of a document that the prescribed agency claims to be exempt under section 28 or 29A.
(4) The production notice must state—
(a) the documents to be produced; and
(b) whether the original of a document is to be produced; and
(c) the time (being not less than 14 days after the notice is given) for compliance with the notice (the compliance period ); and
(d) the place where the documents are to be produced.
(5) The Freedom of Information Commissioner must give a copy of a production notice to the principal officer of the prescribed agency.
(6) Before issuing a production notice, the Freedom of Information Commissioner must consider the most appropriate way for the documents to be produced, taking into account any special requirements needed for the security of the documents.
(7) The Freedom of Information Commissioner may amend or revoke a production notice during the compliance period set out in the notice.
(8) Unless the Supreme Court orders otherwise, the prescribed agency must produce the documents in accordance with the production notice within the compliance period set out in that notice.
(9) If an application is made to the Supreme Court in relation to the issuing of a production notice, the compliance period set out in that notice is suspended for the period between the making and the determination of the application.
(10) In this section and section 61K, "prescribed agency" means an agency prescribed by the regulations for the purposes of this section and section 61K.
(1) If a question arises as to whether the Freedom of Information Commissioner has jurisdiction to issue a production notice to a prescribed agency under section 61J, the Freedom of Information Commissioner or the agency, may apply to the Supreme Court for a determination of that question.
(2) The Supreme Court may make any order it considers proper in relation to an application under subsection (1).
(3) The principal officer of a prescribed agency may, on behalf of the agency—
(a) make an application under this section; and
(b) be a party to an application by the Freedom of Information Commissioner under this section.
(4) Nothing in this section limits any application a prescribed agency may make to the Supreme Court in respect of the issuing of a production notice.
(1) After considering the complaint and any submissions and documents received in relation to the complaint, the Freedom of Information Commissioner may make any recommendations to the agency or the Minister (as the case requires) in relation to the complaint that the Commissioner considers appropriate.
(2) The recommendations may include suggestions for improvements to the policies, procedures and systems of the agency in relation to compliance with this Act.
(3) The Freedom of Information Commissioner must notify the agency or the Minister (as the case requires) and the complainant and any other party to the complaint of the recommendations of the Commissioner to the agency or Minister in relation to the complaint.
(4) The Freedom of Information Commissioner must not disclose an exempt document or any information that if included in a document would make that document an exempt document in giving notice under this section.
(5) If the Freedom of Information Commissioner
intends to make a recommendation that relates to, or a comment about, an
agency, Minister, person or body, the Commissioner must give the agency,
Minister, person or body the opportunity to comment on and respond to the
draft recommendation or draft comment before making the recommendation or
comment.
s. 24
(6) The Freedom of Information Commissioner must take into account any response received by an agency, Minister, person or body under subsection (5) in making a recommendation or any adverse comment under this section.
(7) The Freedom of Information Commissioner must include in the document containing the Commissioner's recommendations and comments, in a manner that fairly, fully and accurately represents the position of the agency, Minister, person or body, any comments received from the agency, Minister, person or body under subsection (5).
(8) If the Freedom of Information Commissioner determines that the subject-matter of the complaint requires further investigation and is within the jurisdiction of a person or body who or which is prescribed by the regulations for the purposes of this section, the Commissioner may refer the matter to that body for investigation.
The Freedom of Information Commissioner may treat a complaint referred to him or her by—
(a) the Ombudsman under section 15C of the Ombudsman Act 1973 ; or
(b) the Victorian Privacy Commissioner under section 34B of the Information Privacy Act 2000 ; or
(c) the Health Services Commissioner under section 51 of the Health Records Act 2001 —
as if it were a complaint made under section 61A.
s. 24
The Freedom of Information Commissioner may communicate to a person or body to whom or which a complaint is referred under section 61C any information obtained or received in the course or as a result of the exercise of the functions of the Commissioner under this Part, being information relating to a complaint referred to the person or body under that section.
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