The OAIC has developed the following frequently asked questions (FAQs) and answers to help FOI practitioners in agencies to navigate changes to the Direction as to certain procedures to be followed in Information Commissioner reviews (for agencies). This page may be updated to reflect other questions and answers the OAIC receives about the IC review procedure direction.
The revised IC review procedure direction has effect from 1 July 2024.
Key revisions to the IC review procedure direction include:
- a requirement that respondents engage, or attempt to engage, with the applicant during the IC review, with a view to resolve or narrow the matters at issue
- a requirement that applicants and respondents send submissions to each other at the same time as they send them to the OAIC, and
- specific procedures for certain types of IC reviews, including reviews of deemed access refusal decisions, and review of access refusal decisions where documents cannot be found or do not exist.
The revised IC review procedure direction introduces a new requirement for an agency or minister respondent, at the commencement of an IC review, to make reasonable attempts to engage with the applicant to resolve or narrow the issues in dispute in the IC review.
That engagement may comprise a telephone or video conference between the applicant and the agency or minister, and the OAIC will not be involved.
The OAIC will issue a s 54Z notice to the agency, notifying them of the commencement of the IC review. At the same time, the OAIC will request that the agency comply with the requirement to engage, and provide the OAIC with evidence of its compliance with the requirement to engage, as well as documents relevant to the IC review, and submissions, within 30 business days of receiving the notice.
We have published a checklist to assist agencies and ministers in meeting the requirement to engage with the applicant: see IC Review Practice Documents.
While agencies should offer telephone or video conference in the first instance wherever possible, where an applicant responds advising they prefer to communicate via written communication, it may be appropriate to engage by post or email.
Agencies should provide an applicant at least one week to respond to an engagement attempt. If an applicant does not respond to an initial attempt to engage, the agency should make a second attempt to engage with a further week to respond. As such, engagement should commence at least 2 weeks prior to the due date notified by the OAIC.
If the applicant has provided multiple contact details to the agency, such as both an email address and a phone number, the second contact attempt should be made via a different contact channel than the original engagement attempt, where possible. If the applicant does not respond to 2 separate attempts to engage, the OAIC will consider the applicant has made reasonable attempts.
If an applicant has lodged their FOI request anonymously, the agency should conduct engagement using the contact details known to the agency. Wherever possible, a phone or video conference should be offered even where an applicant is anonymous. Agencies can invite engagement using an alternative contact channel if the applicant or the agency considers the original contact channel to be unsuitable.
Where an agency has formal restricted communication procedures in place in relation to an applicant (due to the applicant’s engagement with the agency outside of FOI requests), the OAIC will generally consider it is appropriate for the agency to engage via the approved restricted servicing or communication arrangements in place.
We suggest the following topics of discussion may assist in engaging with applicants:
- Clarify the reasons why the applicant disagrees with the decision
- Provide the applicant with a verbal explanation of the FOI decision
- Advise whether any of the information sought is now publicly available
- Advise whether any of the information has now been released to the applicant via another release
- Advise whether you can offer service recovery within your agency that may better address the issue which led to the FOI request
- Discuss the exemption/s used in a general manner and why the FOI Act provides for this type of information to be exempted or conditionally exempted
- Discuss whether the applicant may wish to lodge a fresh FOI request for different documents that may provide the information sought (or similar information)
- Discuss the scope of the IC review and whether the applicant wishes to revise the scope
The IC review procedure direction was first issued in 2018 and contained references to processes and procedures for requesting documents and how information may be requested under s 55R.
The revised IC review procedure direction contains further detail about the processes and procedures to be followed in IC reviews generally, including in relation to expedited cohorts. The IC will use its information gathering powers in particular circumstances to provide certainty to parties regarding the timeframes applicable for the provision of documents and information and to assist in delivering a timely IC review process.
For further information about the IC’s use of directions and information gathering powers: see IC Review Practice Documents.
The revised IC review procedure direction sets out more detailed timeframes than the previous IC review procedure direction.
In particular, the revised IC review procedure direction sets out timeframes for responding to preliminary enquiries, making revised decisions, responding to requests for information in s 54Z notices, undertaking third party consultation, and responding to written directions and notices given under the information gathering powers. These timeframes are below:
Requirement of respondent | Timeframe | Paragraph of IC review procedure direction |
|---|---|---|
Responding to preliminary enquiries under s 54V | 5 business days | Paragraph 3.3 |
Respond to request for information issued under s 54Z notice | 30 business days | Paragraph 3.6 |
Release documents to applicant with a revised decision to give access to the documents in full | 15 business days | Paragraph 2.11 |
Release documents to applicant with a revised decision to give access to the documents in part | 15 business days | Paragraph 2.11 |
Consultation with third parties and related submissions | Up to 20 business days | Paragraph 3.32 |
Advice as to whether the agency or minister has implemented a ‘set aside’ s 55K decision, or will be seeking review of that decision by the AAT | 28 days | Paragraph 3.36 |
Yes. The revised IC review procedure direction requires that agencies and ministers follow certain procedures for IC review of specific types of decisions, such as deemed access refusal decisions (ss 15AC or 54D of the FOI Act), and decisions to refuse access on the basis that documents cannot be found or do not exist (s 24A of the FOI Act).
These certain procedures are aimed at requiring agencies and ministers to assist the Information Commissioner conduct IC reviews in cohorts of related matters, and therefore conduct IC reviews in an expeditious, proportionate, and timely manner.
The OAIC will be writing to agencies in May and June of 2024 to advise of any legacy matters that will be undergoing the case management process between July and December 2024. The OAIC anticipates that the notice provided to agencies will better support agencies in managing their incoming and existing workload, and allow agencies and ministers to reconsider their position on aged matters.
The OAIC has new resources for respondent agencies and ministers, including:
- a checklist to assist agencies and ministers provide relevant information relating to their engagement with the applicant during the IC review: see IC Review Practice Documents
- templates for agencies and ministers to use in making submissions in an IC review
- Quick Guide to directions and information gathering powers during IC reviews
The OAIC will also be holding a webinar in the coming months to provide an update on the revised IC review procedure direction. Please ensure that you are subscribed to the ICON newsletter mailing list to receive further information.
The OAIC will be writing to agencies in May and June of 2024 to advise of any legacy matters that will be undergoing the case management process between July and December 2024. The OAIC anticipates that the notice provided to agencies will better support agencies in managing their incoming and existing workload, and allow agencies and ministers to reconsider their position on aged matters.
For other questions, please submit an Enquiry form, and include your contact details for us to respond to you.
For other questions, please submit an Enquiry form, and include your contact details for us to respond to you.
