Information Commissioner Reviews: Quick guide to use of directions and information gathering powers
This information sheet provides general information on the Information Commissioner’s (IC) use of directions and information gathering powers as set out in the Direction as to certain procedures to be followed by agencies and ministers in IC reviews (the IC review Procedure Direction).
The information sheet provides:
- an explanation on how the IC uses directions and information gathering powers
- an overview of the IC’s most commonly used powers
- information on what it means for you to receive a direction or a notice requiring production of documents or information
- Annexure A: Quick Guide to the use of directions or notices in relation to IC reviews.
How the IC uses directions and information gathering powers
The IC review procedure is designed to be an informal, cost-effective, timely, responsive and proportionate procedure for conducting external merits review of decisions by agencies and ministers.
The IC may conduct a review as they consider appropriate.[1] In relation to each IC review, the IC must:
- conduct the IC review with as little formality and technicality as is possible
- ensure that each party is given a reasonable opportunity to present their case, and
- conduct the IC review in as timely a manner as possible.[2]
The IC may generally make a request for information to be provided voluntarily that the IC believes is relevant to an IC review. To ensure that an IC review is delivered in as timely a manner as possible, the Information Commissioner may issue written directions[3] or use their information gathering powers under the Freedom of Information Act 1982 (FOI Act) to request the relevant documents and information. The IC review Procedure Direction sets out the information and documents that the Information Commissioner may request from an agency or minister in an IC review, such as the documents at issue. A quick guide on the circumstances when the Information Commissioner will use directions or notices to obtain information in relation to IC reviews is set out at Annexure A.
Our most commonly used powers
While the IC may request that information be provided voluntarily, requests for information may be made through the use of directions and notices under various information gathering powers.
Notices used to request the documents at issue
Section 55T – Production of exempt documents generally
The IC may issue a notice that requires the agency or a minister to produce a document that they claim to be exempt under the FOI Act, other than a document claimed to be exempt under s 33, 34, or 45A of the FOI Act.
Section 55U – Production of particular exempt documents
If the IC is not satisfied by evidence on affidavit or otherwise (generally submissions), that a document claimed to be exempt under ss 33, 34, or 45A of the FOI Act is exempt, the OAIC may issue a notice that requires the agency or a minister to produce the document.
Section 55R – Production of information and documents
The IC may issue a notice that requires a person to give information of a kind that the IC believes is relevant to an IC review.[4]
Notices used to request other information
Section 55(2)(e)(ii) – Procedure to be followed in a particular IC review
The IC may give written directions as to the procedure to be followed in relation to a particular IC review. The IC may, for example, request that certain information be provided by a particular timeframe. Directions are commonly issued during the case management of IC reviews to assist with the efficient and timely management of IC reviews.
Section 55E – Inadequate reasons from decision maker
The IC may issue a notice that requires an agency or minister to give reasons for their decision if the IC believes the reasons given were inadequate, or if no reasons were provided (s 55E(1)(c)).
Section 55V – Further searches for a document
The IC may issue a notice that requires an agency or minister to conduct further searches for a document. This notice may be issued during the case management of IC reviews where the access refusal reason involves whether reasonable steps were undertaken to search for documents within the scope of a request.
What it means to receive a direction or a notice requiring production of documents or information
The written direction or notice will give the name and contact details of an OAIC officer, the information required to be provided, the method of delivery and the date by when the information is to be provided by.
You can contact that OAIC officer to discuss what the direction or notice is requiring of you, or your agency or minister’s office. You can also discuss how to provide what is required to the OAIC, such as by email or safe-hand delivery.
The IC expects that information is provided by the timeframe specified in the direction or notice. The consequences of non-compliance may depend on the type of information being requested: it may mean that the IC review proceeds to a decision under s 55K based on the information currently before the IC or it may mean that information such as the document at issue may need to be requested under specific information gathering powers. Further information is set out in the IC Review Procedure Direction.
Annexure A: Quick guide to use of direction or notice in relation to IC reviews under the FOI Act
Stage of IC review | Information required | Type of request | Request addressed to | Response to be provided within | Consequences of non-compliance (if information is not received within the timeframe or an extension to response is not received) |
|---|---|---|---|---|---|
Upon commencement of IC review – review of access refusal or access grant decision | Processing documents, submissions and documents subject to the IC review (other than those claimed to be exempt under ss 33, 34, and 45A) | Informal | FOI officer | 30 business days | IC may issue a notice under s 55T (as set out below) |
Upon commencement of IC review – review of deemed access refusal | Provision of:
| Direction under s 55(2)(e)(ii) Requirement to produce documents under s 55T | EL2 or SES | 15 business days | If no response is provided, a notice to produce documents under s 55R may be issued to the nominated escalation point or Chief Operating Officer. |
| Request to produce information or documents under s 55R | Chief Operating Officer or nominated escalation contact | 10 business days | Offence punishable by 6 months imprisonment | |
Upon commencement of IC review – review of adequacy of searches | Conduct further searches for documents, provide a copy of records of those searches, and provide an adequate statement of reasons for the decision | Requirement to conduct further searches for documents under s 55V Requirement to provide adequate statement of reasons under s 55E | FOI Officer up to EL2 | 15 business days | IC may make decision under s 55K based on available information |
During the case management an IC review – request for documents (other than those claimed to be exempt under ss 33, 34, and 45A) | Documents claimed to be exempt (other than under ss 33, 34, and 45A) | Requirement to produce documents under s 55T | EL2 or SES officer | 10 business days | IC may proceed to require the provision of information and the production of documents pursuant to s 55R of the FOI Act |
During the case management an IC review – request for documents involving the application of ss 33, 34 and 45A | Documents claimed to be exempt under ss 33, 34, and 45A | Requirement to produce documents under s 55U | EL2 or SES officer | 10 business days | IC may proceed to require the provision of information and the production of documents pursuant to s 55R of the FOI Act |
Processing documents and documents at issue | Request to produce information or documents under s 55R | Chief Operating Officer or nominated escalation contact | 10 business days | Offence punishable by 6 months imprisonment | |
During the case management of an IC review – request for further information | Further information such as submissions | Direction under s 55(2)(e)(ii) | EL2 or SES officer | 10 business days, or up to 20 business days if third party consultation is required | IC may make decision under s 55K based on available information |
