The Law Handbook 2024

Chapter 12.3: Freedom of information law 1135 Step 2: Victorian Civil and Administrative Tribunal After a review by the VI Commissioner, subsequent appeals may be taken to the Victorian Civil and Administrative Tribunal ( VCAT ) (s 50) (see www. vcat.vic.gov.au) . Generally, the timeframe for lodging an application to VCAT is 60 days from the day a notice in writing of the decision of the VI Commissioner is received by an applicant (s 52 (1)-(8)). However, if an agency or minister is applying to VCAT for a review of a decision by the VI Commissioner pursuant to s50(3D), the timeframe is 14 days from receipt of the decision (s 52(9)). Access to personal documents Documents which would involve the unreasonable disclosure of the personal affairs of any person (including a deceased person) are exempt documents under section 33(1) of the FoI Act (Vic). When determining whether the disclosure of a document would involve the unreasonable disclosure of personal affairs, an agency or minister must take into account whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person (s 33(2A)). Note that a document will not be considered exempt just because the mention of a person is included in it, the mentionmust, or must be reasonably likely to, endanger the life or physical safety of any person (s 33(2)). Additionally, in general, an agency or minister must notify the person who is the subject of that information (or if that person is deceased, that person’s next of kin) that access to the document has been requested and seek that person’s view as to whether disclosure of the document should occur. If the person consents to disclosure (including disclosure subject to redaction of their personal affairs) they are not entitled to apply to VCAT for a review of the decision to disclose the document (s 33(2B)). If the person is a minor, an agency or minister may contact either the child’s parent/guardian or the child, or both the child’s parent/guardian and the child (s 33A). Access to information about business Documents which would disclose information acquired by an agency or a minister from a business, commercial or financial undertaking (the undertaking), relating to: • trade secrets; or • other matters of a business, commercial or financial nature which, if disclosed, would be likely to unreasonably expose the undertaking to disadvantage are exempt documents under section 34(1) of the FoI Act (Vic). When determining whether the disclosure of a document would unreasonably expose an undertaking to disadvantage, an agency or minister may take into account whether: • the information is generally available to competitors of the undertaking; • the information would be exempt matter if it were generated by an agency or a minister; • the information could be disclosed without causing substantial harm to the competitive position of the undertaking; and • there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking (s 34(2)). Additionally, an agency or minister must notify the undertaking that access to the document has been requested and seek their view as to whether disclosure of the document should occur. If the undertaking consents to disclosure (including disclosure subject to redaction of their personal affairs) they are not entitled to apply to VCAT for a review of the decision to disclose the document (s 34(3)). If, after consultation, the agency or minister decides to disclose the document, they must notify the undertaking of the decision to disclose the document and their right to apply to VCAT for a review of the decision (s 34(3A)). Can I amend my personal records? If a document containing information relating to a person’s personal affairs is released to that specific person, they may request a correction or amendment of the information where it: • is inaccurate; • is incomplete; • is out of date; or