Part 9: Internal agency review of decisions

Published date: 09 April 2024

Version 1.5 – April 2024

9.1 Part VI of the FOI Act provides for internal review of agency decisions in 2 circumstances:

• an FOI applicant whose FOI request is refused may apply to the agency for review of its original decision. The internal review can extend to a decision to refuse access either in full or in part, to defer access to a document, to a decision about FOI charges, to give access to a document to a qualified person, or to a refusal to amend or annotate a personal record.
• a third party who is affected by a decision to grant access to a document in accordance with an FOI request may apply to the agency for internal review of its decision to grant access.

9.2 As a merits review process, an internal review is a new decision-making process in which an independent internal review decision-maker remakes the original access refusal or access grant decision.

9.3 The internal review decision-maker has all the powers of the original decision-maker, including clarifying the scope of the FOI request with the FOI applicant, searching for documents within the scope of the FOI request, redoing work done at the original decision-making stage, producing documents under s 17 of the FOI Act, providing a different form of access and consulting affected third parties.

9.4 The internal review decision-maker is not limited to the evidence before the original decision-maker and must have regard to any change in circumstances or new information or evidence that has come to light since the original decision was made.

Choice between internal review or IC review

9.5 An FOI applicant or affected third party who is dissatisfied with an agency’s original decision can apply for either internal review or Information Commissioner (IC) review of that decision. The FOI applicant or affected third party is not required to apply for internal review before applying for IC review. The purpose of giving the option of proceeding straight to IC review, without first applying for internal review, is to encourage agencies to make the best decision in the first instance.^[1]

9.6 The Information Commissioner is of the view that it is usually better for a person to seek internal review of an agency decision first, before applying for IC review. Internal review can be quicker than external review and enables an agency to take a fresh look at its original decision. An internal review also enables agencies to monitor and improve its systems for managing FOI process at the earliest possible juncture.

9.7 The Information Commissioner therefore suggests that agencies include in the advice they send to FOI applicants about their review rights, information to the effect that the agency commits to expeditious processing of internal reviews in accordance with s 54C(3) (that is, within 30 days), noting that a timeframe for completion does not apply to the Information Commissioner under the FOI Act. An agency will be able to consider the request more quickly if they apply for internal review in the first instance, rather than applying for external review by the Information Commissioner.

9.8 FOI applicants and affected third parties should not apply for internal review and IC review at the same time. The FOI applicant or affected third party may first apply for internal review and, following completion of the internal review, apply for IC review.^[2] The FOI Act anticipates that only one review will be conducted at a time. If an FOI applicant has applied for internal review, they should wait for an internal review decision to be made before applying for IC review. Alternatively, the FOI applicant or affected third party may proceed directly to IC review, bypassing internal review.

9.9 An internal review is not available if the original decision was made:

• by a minister (or a person the minister has authorised to make a decision on their behalf)^[3] or
• personally, by the principal officer of an agency

This includes a deemed access refusal decision made by a minister or principal officer of the agency (see [9.18] below). For this reason, a person dissatisfied with the original decision will need to apply for IC review.

Decisions subject to internal review

9.10 Internal review is available to both an FOI applicant dissatisfied with an access refusal decision (see [9.11])and an affected third party dissatisfied with an access grant decision (see [9.13]).

Access refusal decisions

9.11 An access refusal decision is defined in s 53A to include any of the following:

1. a decision refusing to give access to a document in accordance with an FOI request
2. a decision giving access to a document but not giving, in accordance with the FOI request, access to all documents to which the request relates
3. a decision purporting to give access to all documents to which an FOI request relates, but not actually giving that access
4. a decision to defer the provision of access to a document (other than a document that a minister thinks should first be provided to Parliament in accordance with s 21(1)(d))
5. a decision under s 29 relating to the imposition of a charge or the amount of a charge
6. a decision to give access to a document to a qualified person under s 47F(5)
7. a decision refusing to amend a record of personal information in accordance with an application made under s48
8. a decision refusing to annotate a record of personal information in accordance with an application made under s48.

9.12 An internal review of an access refusal decision can reconsider the entire decision and is not limited to the FOI applicant’s contentions regarding the decision.

Access grant decisions

9.13 An access grant decision is defined in s 53B and includes the following decisions:

1. a decision giving the FOI applicant access to a document, or an edited copy of a document, where consultation with a State is required under s 26A.
2. a decision giving the FOI applicant access to a document, or an edited copy of a document, where consultation with a person, organisation or proprietor of an undertaking is required under s 27.
3. a decision giving the FOI applicant access to a document, or an edited copy of a document, where consultation with a person or their legal representative is required under s27.

9.14 An internal review of an access grant decision is limited to considering the affected third party’s contentions in relation to the specified exemptions. This is because affected third parties are only consulted on the application of s 47B (State-Commonwealth relations) (under s 26A), s 47F (personal information) (under s 27A) and ss 47 and 47G (trade secrets or business information) (under s 27).

9.15 Where there is more than one affected third party internal review application, the internal review decision-maker should deal with each application separately. This is because an internal review of an access grant decision is limited to the affected third party’s contentions about the original decision and the grounds for review in the case of each affected third party are likely to be different.

Who can apply for internal review?

9.16 An FOI applicant may apply for internal review of an access refusal decision (s 54(2)).

9.17 The following are affected third parties who may apply for internal review of an access grant decision (s 54A(2)):

• the State consulted under s 26A in relation to documents affecting Commonwealth-State relations
• the person or organisation consulted under s 27 in relation to documents containing business information or trade secrets
• the person consulted under s 27A in relation to documents containing personal information about a living person
• the legal personal representative consulted under s 27A in relation to documents containing personal information about a deceased person.

9.18 Internal review is not available where:

• a State, person or organisation was invited to make a submission in relation to documents affecting Commonwealth-State relations (s 26A), documents containing business information (s 27) or documents containing personal information (s 27A), but did not do so. There is no requirement to notify the State, person or organisation of the access grant decision if they failed to make a submission.
• a State, person or organisation was not consulted under ss 26A, 27 or 27A. A State, person or organisation is not entitled to apply for internal or IC review of an access grant decision. (A third party who believes they should have been consulted can complain to the Information Commissioner. For further information about FOI complaints see Part 11 of these Guidelines.)
• an access refusal decision or access grant decision was made by a minister or a person the minister has authorised to make a decision on their behalf (ss 54(1) and 54A(1)) or made personally by the principal officer of an agency (ss 54(1) and 54A(1))
• a foreign government or international organisation was consulted under s 15(7)
• a decision is not made within the statutory timeframe and consequently a decision is deemed to have been made refusing access to a document under s 15AC, or refusing to amend or annotate a personal record under s 51DA (s 54E(b)) or
• where the original decision has already been the subject of an internal review (s 54E(a)).

Procedure in an internal review

Making an application for internal review

9.19 An application for internal review must:

• be in writing (electronic communications are considered to be in writing under the Electronic Transactions Act 1999) and
• be made within the specified time limit (s 54B(1)).^[4]

9.20 If the applicant for internal review includes their reasons for applying for internal review, this will allow the agency to  conduct the internal review more quickly and efficiently. For example, the applicant for internal review may ask for additional searches to be undertaken or they may contest the application of a specific exemption as part of their internal review application.

9.21 An internal review applicant cannot expand the scope of their FOI request during an internal review. This is to ensure that the internal review is not used to create a new FOI request or to change the scope of the request as agreed during the s 24AB request consultation process.

Time for applying

9.22 A person or entity has 30 calendar days after being notified of an agency’s access refusal or access grant decision to apply for internal review (s 54B(1)(a)).

9.23 Access is not always provided to documents at the same time as an FOI decision is made under s 26, for example, where charges are outstanding at the time of notifying a decision. To avoid prejudice if an agency fails to provide access to documents at the same time as notifying its decision, a period longer than 30 days may apply to the following access refusal decisions (see [9.25]):

• a decision giving access to documents in accordance with a request but which does not give access to all the documents to which the request relates (s 53A(b))
• a decision purporting to give access to documents in accordance with a request but not in fact doing so (s 53A(c)) or
• a decision giving access to documents to a qualified person rather than the applicant (s 53A(f)).

9.24 In these cases, the time limit for applying for internal review is either 30 calendar days after the day the FOI applicant is notified of the original decision (or such further period as the agency allows), or 15 calendar days after access to documents is given or purported to be given, whichever period is longer (s 54B(1)(b)). A period longer than 30 days will apply if access was given or purported to be given more than 15 calendar days after notification of the original decision.

Extension of time for applying

9.25 Sometimes when an internal review applicant is seeking an extension of the time to apply for internal review, their application will already be out of time. An agency may extend the period for an applicant to apply for internal review, even if the statutory period has already expired (s 54B(2)).

9.26 The FOI Act does not specify any criteria that an agency must consider however an agency is encouraged to adopt a liberal approach and grant an extension of time unless there are sound reasons not to do so.

9.27 The following factors should be considered when deciding whether to grant an extension of time:

• there is urgency in providing the FOI applicant with access to the requested documents, for example, the documents may be needed for imminent legal proceedings or to support an application that is subject to a timeframe that would be missed if the extension of time was not granted
• the time elapsed since the original decision and any adverse impact upon the agency caused by the passage of time, for example administrative difficulties or prejudice in conducting the internal review
• the applicant has not satisfactorily explained the reason for the delay
• there would be no practical benefit in extending the time to apply for internal review of an access grant decision because the documents have already been released

9.28 Where an extension of time is sought by an affected third party, it is important to communicate with the FOI applicant so they are aware of the process and notified that provision of access to the requested documents will be delayed until an internal review decision is made. In some cases, for example where an FOI applicant has sought access to their own personal information which comprises joint personal information, it may be appropriate to consult the FOI applicant when deciding whether to grant the affected third party additional time to apply for internal review.

9.29 In granting an extension of time to apply for internal review, it is reasonable for an agency to require an applicant to apply for internal review within a short and specified time, for example, 20 days.

9.30 A decision to refuse an extension of time to apply for internal review of an access refusal decision is an IC reviewable decision (s 54L(2)(c)). The agency bears the onus of establishing that the refusal to grant extra time was justified (s 55D).

9.31 Affected third parties to access grant decisions should be advised to apply for internal or IC review before the relevant statutory timeframes expire. If they fail to do so, the agency may release the requested documents in accordance with the decision, making the option of internal or IC review of no practical effect.

9.32 An affected third party cannot apply for IC review of an agency’s refusal to extend the time to apply for internal review of an access grant decision. However, the affected third party can apply to the Information Commissioner for an extension of time to apply for IC review under s 54T of the FOI Act.

The internal review decision-maker

9.33 An agency must, as soon as practicable after receiving an application for internal review, arrange for a person other than the original FOI decision-maker to make the internal review decision (s 54C(2)). The person must be an officer of the agency, appointed as an authorised officer under arrangements approved by the minister or principal officer of the agency under s 23.

9.34 The role of the internal review decision-maker is to bring a fresh, independent and impartial mind to the internal review.

9.35 To the extent that it is possible, the internal review decision-maker should be senior to the original decision-maker and not involved in making the original decision. However, an internal review decision-maker at the same level may be appointed if they have had no prior involvement in the decision that is subject to internal review. If no suitable person can be appointed, the agency should consider discussing with the applicant the option of applying for IC review.[5]

9.36 It is desirable that any person appointed to conduct an internal review have a background in administrative decision making and have undertaken FOI training so they can bring an independent mind to the internal review and are not reliant on the original decision-maker for guidance in applying the FOI Act.

Internal review decision-making

9.37 The FOI Act does not prescribe any procedure or criteria for internal review decision-making[6]but the usual administrative decision-making principles apply. The internal review decision-maker:

• makes a new decision
• exercises all the powers available to the original decision-maker
• should have access to all the material that was available to the original FOI decision-maker and may also consider any additional relevant material or submissions not considered by the original decision-maker
• must consider all issues raised by the applicant for internal review and may contact that person to seek further information or to discuss the issues raised by the application
• must bring an independent mind to the internal review and must not act at the direction or behest of any other officer.

9.38 Internal review of an access refusal decision may consider all of the original decision to refuse access and is not limited to the refusal of access to specific documents or the applicant’s contentions.

9.39 Internal review of an access grant decision is limited to review of the original decision to grant access to specific documents, and the affected third party’s contentions regarding the decision to grant access.

9.40 An internal review decision-maker has all the powers of the original decision-maker and can do any of the following:

• undertake further searches for documents
• reconsider all the material available to the original decision-maker and any additional relevant material or submissions not considered by the original FOI decision-maker
• consider all issues raised by the applicant for internal review, including by contacting that person to seek further information or to discuss the issues raised by the internal review application, including the option of refining or narrowing the scope of the application
• produce documents under s 17 of the FOI Act and provide a different form of access
• if the decision-maker decides to release documents containing the personal or business information of an affected third party or information affecting Commonwealth-State relations, access to the documents must not be given until an affected third party’s review or appeal opportunities have been exhausted (ss 26A(4), 27(4) and 27A(6)) (see Part 3 of the FOI Guidelines)
• undertake third party consultation where documents contain information about a person or business who was not consulted earlier, or where the consultation did not address issues that have subsequently arisen during the internal review and the affected third party might reasonably wish to make an exemption contention (ss 26A, 27 and 27A). Where an affected third party is given an opportunity to make an exemption contention, there is no extension of time to the period for notifying a decision (that is, there is no equivalent to s 15(6) in an internal review).

9.41 The internal review decision-maker may find the original decision-maker misunderstood the scope of the FOI request and that if the scope had been properly understood in the first instance, it would have attracted a practical refusal reason. In this circumstance, the internal review decision-maker may decide to commence a request consultation process (s 24AB). If this occurs, it is important to note that:

• as s 24AB(8) only provides for the consultation period to be disregarded for the purpose of working out the 30-day period in s 15(5)(b), the 30-day processing period in s 54C(3) cannot be extended as a result of consultation under s 24AB. This means consultation needs to be undertaken within the 30-day internal review timeframe.
• the estimate of the time to process the FOI request can only include the time needed to process the FOI request at the internal review stage. However, the time taken to process the original request may inform the calculation of how long it will take to process the remaining part of the request. (See Part 3 of the FOI Guidelines for more information about practical refusal decisions).

9.42 If an internal review of an access grant decision overturns the original decision and decides that the document, subject to submissions from an affected third party, is exempt from disclosure, the FOI applicant may apply for IC review of the internal review decision.

Extension of time for making an internal review decision

9.43 The agency must notify the applicant for internal review of a decision on internal review within 30 calendar days of receiving the internal review application (ss 54C(3)).

9.44 If an agency does not make an internal review decision within 30 days of the internal review application being received, the principal officer of the agency is deemed to have made and notified a decision affirming the original FOI decision (ss 54D(2)). The applicant for internal review may then apply for IC review of the agency’s deemed decision (see Part 10 of these Guidelines).

9.45 Unlike the original FOI decision-making process, the FOI Act does not provide for an extension of time to decide the internal review with the agreement of the internal review applicant.

9.46 An agency may apply to the Information Commissioner for an extension of time to finalise an internal review (s 54D(3)). An extension of time application under s 54D must be made after the internal review processing period has ended and there is a deemed internal review decision. The Information Commissioner has a discretion to extend the internal review decision-making-period as considered appropriate (s 54D(4)), and may also impose conditions (s 54D(5)), for example that the agency must give notice of the extended time to the applicant for internal review.

9.47 The FOI Act does not specify any criteria the Information Commissioner must consider when deciding whether to grant an extension of time to make an internal review decision. Generally, the Information Commissioner will consider whether it is reasonable in all the circumstances to grant an extension, having regard to the agency’s reasons for making the application and any views expressed by the applicant for internal review.

9.48 Relevant factors may include:

• the scope of the FOI request and the number of documents in scope
• the work already undertaken by the original decision-maker and the amount of additional work needed to complete the internal review
• whether any other agencies or parties have an interest in the subject matter of the internal review
• the measures to be taken by the agency to ensure a decision will be made within the extended time period and to keep the applicant for internal review informed about the progress of the internal review.[7] Factors including the prejudice to the parties will also inform these decisions.

9.49 If the Information Commissioner grants an extension of time, the agency will not be deemed to have affirmed the original FOI decision (s 54D(6)) as long as the agency makes a decision within the extended time and complies with any conditions imposed (s54D(5)). The purpose of this provision is to avoid the need for an applicant for internal review to apply for IC review.[8]

9.50 If an agency does not make an internal review decision within the extended period or does not comply with any conditions, the agency is deemed to have affirmed the original decision (s54D(7)). In this case, the Information Commissioner has no power to allow a further extension of time to make an internal review decision and the applicant for internal review may apply for IC review (s 54D(8)).

9.51 If an agency is deemed to have affirmed the original decision because the statutory time to make a decision has passed, the agency is encouraged to continue processing the internal review and to release any documents administratively. This approach supports the objects of the FOI Act. However this approach is not available if the internal review applicant has applied for IC review of the deemed decision. The agency can also consider applying in writing to the Information Commissioner for further time to consider the deemed affirmation of the original decision (s 54D(3)). (See Part 10 of these Guidelines for guidance on how agencies can resolve a deemed FOI decision subject to IC review).

Notifying the applicant of an internal review decision

9.52 The agency must notify the applicant for internal review of a decision within 30 calendar days after the day the internal review application was received (ss 54C(3) and 54D). If the internal review applicant does not receive notice of the internal review decision within 30 days after the day the application was received, the principal officer of the agency is deemed to have made and notified a decision affirming the original FOI decision on the 30th day (s 54D(2)). The applicant for internal review may then apply for IC review of the agency’s deemed decision (see Part 10 of these Guidelines).

9.53 A decision affirming the refusal of access to a document, or deferring access to a document, must include the following particulars specified in s 26:

• the findings on any material questions of fact, referring to the material on which those findings were based and the reasons for the decision
• the reasons for any public interest factors taken into account
• the name and designation of the person making the decision
• the internal review applicant’s review rights, right to complain to the Information Commissioner, and the procedures for exercising those rights. This should be included because even if the internal review decision is to provide access to the documents requested, the applicant may wish to seek IC review on the basis that not all documents covered by an FOI request were identified by the agency. Additionally the applicant may wish to lodge a complaint.

Charges and internal reviews

9.54 Charges for processing an FOI request cannot be imposed on internal review. The Note to regulation 6 of the Freedom of Information (Charges) Regulations 2019 (Regulations) states that because the FOI Act defines ‘request’ as an application made under s 15(1) of the FOI Act, regulation 6(a) does not apply to an application for internal review under ss 54 or 54A of the FOI Act.

9.55 Part 1 of Schedule 1 to the Regulations lists the following processing activities in respect of which agencies cannot impose a charge when conducting an internal review:

• the time spent by the agency or minister in searching for, or retrieving, the document
• the production of a document containing information in a discrete form by the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information
• the production of a written transcript
• the time spent by an agency or minister in deciding whether to grant, refuse or defer access to a document or to grant access to a copy of a document with deletions, including time spent in examining documents, consulting with a person or body, redacting a document and notifying an interim or final decision on the request.

9.56 However, charges for providing access to documents identified in Part 2 of Schedule 1 to the Regulations may be imposed on internal review.

Reporting internal reviews

9.57 Statistical data about internal reviews needs to be included at items 8B-8D on page 2 of the FOI quarterly statistical return form on the OAIC FOI statistics portal (at https://foistats.oaic.gov.au/).[9]

9.58 Agencies need to keep accurate records of internal review applications and how the internal reviews were decided. The following information must be reported on the FOIstats portal at the end of each quarter:

• the number of applications for internal review received by the agency during the quarter
• the number of internal review decisions made in the following categories:
• where the original decision was affirmed
• if the agency decision was varied on review, whether more access was given (access granted in full); greater access was given (access granted but not in full); access was granted after deferment; access was granted in another form; charges were reduced or not imposed or lesser access was given
• applications withdrawn by the applicant for internal review without any concession by the agency.

9.59 The number of internal review applications and every outcome must be reported on the basis of whether the FOI request sought ‘predominantly personal’ or ‘other’ information.