Office of the Victorian Information Commissioner

What types of complaints can you make?

OVIC can deal with two main kinds of complaints.

OVIC can deal with some FOI complaints and some privacy complaints in Victoria.

Some common FOI complaints include:

• A Victorian public sector agency or Minister took too long to decide your FOI request.
• An agency or Minister said documents did not exist or could not be found, but you think they should exist.
• An agency or Minister did not properly search for documents.
• An agency did not help you make a valid FOI request.
• An agency did not follow the FOI Professional Standards.
• An agency did not publish information it is required to make public under the FOI Act.
• A Minister wrongly delayed access to a document.
• A third party thinks an agency or Minister wrongly decided to release their personal, business, commercial or financial information.

Some common privacy complaints include:

• A Victorian government organisation collected more personal information than it needed.
• It did not properly tell you why your personal information was being collected.
• It collected your personal information from somewhere else without proper basis.
• It used or shared your personal information for the wrong purpose.
• It kept wrong, incomplete, outdated or misleading personal information about you.
• It did not properly protect your personal information from loss, misuse, unauthorised access or disclosure.
• It did not clearly explain how it handles personal information.
• It refused or limited your request to access or correct your personal information.
• It misused a government identifier.
• It did not allow you to stay anonymous or use a pseudonym where it should have.
• It transferred your personal information outside Victoria without proper basis.
• It mishandled sensitive information.

OVIC cannot handle:

• complaints about Commonwealth agencies like Centrelink, the ATO or Medicare
• complaints about agencies in other states or territories
• general service complaints that are not really about FOI handling or privacy
• general complaints about police misconduct or corruption that are not about FOI or privacy
• complaints about court or tribunal decisions
• general complaints about a Minister’s broader conduct outside FOI or privacy
• privacy complaints about health information
• most privacy complaints about private businesses acting only in a private capacity
• complaints that are really challenges to an FOI decision and should go through FOI review instead.

Jurisdiction:

OVIC can handle complaints under the laws of Victoria.

Time Limits:

• FOI complaints usually need to be made within 60 days after the action complained about
• Privacy complaints do not have the same hard time limit, but OVIC may decline to deal with them if they are made more than 45 days after you became aware of the act or practice

Who can you make a complaint against?

OVIC can take complaints against:

• a Victorian public sector agency for how it handled an FOI request
• a Victorian Minister for how they handled an FOI request for ministerial documents
• a Victorian public sector organisation for how it handled personal information
• in some privacy matters, a private entity providing services to a Victorian public sector organisation

This can include bodies such as:

• Victorian government departments
• local councils
• statutory authorities
• public hospitals
• universities
• schools
• TAFEs

OVIC’s complaint pathways are not for:

• Commonwealth agencies
• agencies in other states or territories
• private businesses acting only in a private capacity
• health privacy complaints

Are you eligible to make a complaint?

For FOI complaints, the complainant will usually be:

• the person who made the FOI request, or
• in some third-party release matters, the person whose information may be released

For privacy complaints, the complainant is usually the person whose personal information was handled and who says there may have been an interference with their privacy.

Before complaining to OVIC:

• for FOI complaints, it is useful to first contact the agency or Minister
• for privacy complaints, you should usually complain to the organisation first and give it a chance to respond

A complaint can also be made on behalf of someone else. OVIC may ask for consent or authority.

OVIC’s services are free. You do not need a lawyer, although you can get legal advice if you want to.

What can this body do to help?

OVIC handles FOI and privacy complaints differently.

For FOI complaints, OVIC may:

• try to resolve the complaint informally
• conciliate the complaint
• require a further search for documents
• make recommendations to the agency, principal officer or Minister
• recommend improvements to policies, procedures or systems
• recommend referral of the matter to another body where appropriate

For privacy complaints, OVIC may:

• try to resolve the complaint informally
• conciliate the complaint
• give guidance about how the privacy principles apply
• help the parties work towards an agreed outcome

Possible agreed outcomes in a privacy complaint can include:

• an explanation
• an apology
• a change in procedures
• staff education
• action to fix loss or damage
• compensation by agreement

OVIC cannot:

• make a binding determination in a privacy complaint
• punish, fine or prosecute an organisation
• force an organisation to take or stop a specific action through the privacy complaints process
• give legal advice
• advocate for either side
• overturn an administrative decision

How to prepare your complaint:

Format:

• FOI complaints must usually be made in writing
• Privacy complaints are usually made using OVIC’s privacy complaint process after first complaining to the organisation

Include your details:

You should include your contact details so OVIC can contact you. This usually includes:

• first and last name
• phone number
• email address or postal address

Include the respondent’s details:

You should clearly identify the agency, Minister or organisation you are complaining about.

Explain what happened:

Try to include:

• what happened
• when it happened
• what the complaint is about
• what outcome you want
• what steps you have already taken

Include supporting documents:

If possible, include documents such as:

• your FOI request
• the agency’s or Minister’s decision letter
• relevant correspondence
• any other supporting material

If you need help:

OVIC says help may be available if you have difficulty putting your complaint in writing or using the online form.

What to keep in mind:

• keep the complaint focused on the FOI handling issue or the privacy issue
• if you have confidential information you do not want shared with the agency or Minister, do not put it in the main FOI complaint form — OVIC says you can provide it separately after the complaint is accepted

Lodging your complaint and next steps:

Where to lodge:

• Online form via OVIC’s website.
  
  • FOI Request Review HERE.
  • Privacy Complaints HERE.

What happens next:

After you submit a complaint, OVIC will usually:

• check whether it has jurisdiction
• check whether it has enough information
• ask for more information if needed
• notify the respondent if it accepts the complaint

If OVIC accepts the complaint:

OVIC may then:

• make preliminary enquiries
• gather more information
• ask questions
• request documents
• speak to both sides
• try to resolve the complaint informally

How complaints may be resolved:

OVIC may try to resolve the complaint by:

• getting the agency or Minister to carry out a further search
• getting a clearer explanation from the respondent
• resolving the issue through conciliation
• making recommendations
• formalising an agreed outcome in writing in some privacy complaints

When OVIC may decline or stop dealing with a complaint:

OVIC may decline to deal with, or stop dealing with, a complaint in some cases. This can happen if:

• the matter should really go through FOI review instead
• another remedy or body is more appropriate
• the complaint was not first made to the organisation where required
• the complaint is frivolous, vexatious, misconceived, lacking in substance, or not made in good faith
• the complaint is out of time
• the complainant does not cooperate with the process

If the matter is not resolved:

• for privacy complaints, you may be able to ask OVIC to refer the complaint to VCAT
• for FOI matters, if the issue is really about disagreeing with the decision on documents found, you will usually need to use the FOI review pathway instead

More information:

Refer to the factsheet provided below for more information.