62Circumstances in which Information Commissioner may decline to entertain complaint

62 Circumstances in which Information Commissioner may decline to entertain complaint S. 62(1) amended by No. 20/2017 s. 106(13)(a). (1) The Information Commissioner may decline to entertain a complaint made under section 57(1) by notifying the complainant and the respondent in writing to that effect within 90 days after the day on which the complaint was lodged if the Information Commissioner considers that— (a) the act or practice about which the complaint has been made is not an interference with the privacy of an individual; or (b) the act or practice is subject to an applicable code of practice and all appropriate mechanisms for seeking redress available under that code have not been exhausted; or S. 62(1)(c) amended by No. 20/2017 s. 106(13)(a). (c) although a complaint has been made to the Information Commissioner about the act or practice, the complainant has not complained to the respondent; or S. 62(1)(d) amended by No. 20/2017 s. 106(13)(a). (d) the complaint to the Information Commissioner was made more than 45 days after the complainant became aware of the act or practice; or (e) the complaint is frivolous, vexatious, misconceived or lacking in substance; or S. 62(1)(ea) inserted by No. 31/2024 s. 52. (ea) the complainant has failed to co‑operate with the Information Commissioner without reasonable excuse; or (f) the act or practice is the subject of an application under another enactment and the subject matter of the complaint has been, or is being, dealt with adequately under that enactment; or (g) the act or practice could be made the subject of an application under another enactment for a more appropriate remedy; or (h) the complainant has complained to the respondent about the act or practice and either— (i) the respondent has dealt, or is dealing, adequately with the complaint; or (ii) the respondent has not yet had an adequate opportunity to deal with the complaint; or (i) the complaint was made under section 60, on behalf of a child or a person with a disability, by an individual who has an insufficient interest in the subject matter of the complaint. S. 62(2) amended by Nos 21/2015 s. 3(Sch. 1 item 41.3), 20/2017 s. 106(13)(a). (2) A notice under subsection (1) must state that the complainant, by notice in writing given to the Information Commissioner, may require the Information Commissioner to refer the complaint to VCAT for hearing under Subdivision 5. S. 62(3) amended by No. 20/2017 s. 106(13)(a). (3) Before declining to entertain a complaint, the Information Commissioner may, by notice in writing, invite any person— S. 62(3)(a) amended by No. 20/2017 s. 106 (13)(a). (a) to attend before the Information Commissioner, or an employee in the office of the Information Commissioner, for the purpose of discussing the subject matter of the complaint; or (b) to produce any documents specified in the notice. S. 62(4) amended by Nos 21/2015 s. 3(Sch. 1 item 41.3), 20/2017 s. 106 (13)(a)(b). (4) Within 60 days after receiving the Information Commissioner's notice declining to entertain a complaint, the complainant, by notice in writing given to the Information Commissioner, may require the Information Commissioner to refer the complaint to VCAT for hearing under Subdivision 5. S. 62(5) amended by No. 20/2017 s. 106(13)(a). (5) The Information Commissioner must comply with a notice under subsection (4). S. 62(6) amended by No. 20/2017 s. 106(13)(a). (6) If the complainant does not notify the Information Commissioner under subsection (4), the Information Commissioner may dismiss the complaint. S. 62(7) amended by No. 20/2017 s. 106(13)(a). (7) As soon as possible after a dismissal under subsection (6), the Information Commissioner must, by written notice, notify the complainant and the respondent of the dismissal. (8) A complainant may take no further action under this Act in relation to the subject matter of a complaint dismissed under this section. S. 63 (Heading) amended by No. 20/2017 s. 106(3).