Quick guide to the direction applicants follow in an Information Commissioner review

Last updated: 17 May 2024

The Office of the Australian Information Commissioner (OAIC) handles applications for reviews of freedom of information (FOI) decisions made by an Australian Government agency or minister.

You can seek an Information Commissioner (IC) review if you are unhappy with an FOI decision, or it has not been made within the statutory timeframe.

This ‘Quick guide’ provides a summary of the Direction as to certain procedures to be followed by applicants in Information Commissioner reviews as at 1 July 2024. The numbers in brackets refer to the paragraphs in the direction.

IC review process

• The IC review process is intended to be informal, non-adversarial and timely. The IC review processes and procedures can be found in Part VII of the FOI Act and Part 10 of the Guidelines (see 1.5 and 2.2–2.4).

Making an application for IC review

• Your application must be made in writing and should be made using the online application form (see 2.7).
• Your application must include your contact details including name, telephone number and email address (see 2.9).
• If you require assistance, this must be set out in the application which should provide details of your nominated representative and evidence of their authority (see 2.11).
• An application may be made by or on behalf of the person who made the request to which the decision relates (see 2.12).
• Your application must include the agency or minister’s decision, or – if no decision has been made – a copy of your FOI request (see 2.15).
• Where there is a choice between applying for internal review or IC review, the Information Commissioner is of the view that it is usually better to seek internal review first (see 2.15).
• You can ask the OAIC for assistance with making an application for IC review (see 2.11).
• Your application and any attachments will be shared with the agency or minister, as well as any other parties to the review, unless there is a reason not to do so (see 2.29).
• If an application does not meet the requirements, it may be considered to be invalid (see 2.8).

Changes to contact details

•  You should advise the OAIC of any change to your contact details as soon as possible (see 2.13).

Participation in IC review processes

• The agency or minister who made the decision must engage with you to resolve or narrow the issues in dispute in the IC review. This engagement may be by telephone or video conference (see 2.18–2.19). If you prefer to engage with the agency or minister by another method, you should advise them of this preference.
• If you fail to engage with the agency or minister without reasonable excuse, the Information Commissioner may decide not to continue to undertake the IC review (see 2.21).
• You must respond to enquiries from the OAIC within the period provided unless there are exceptional circumstances or an extension has been granted (see 2.22).
• If an agency or minister makes a ‘revised decision’ under s 55G during the IC review, which facilitates the release of further material to you, the OAIC will generally consult you as to whether you want to continue the IC review. If you do not respond to the OAIC’, the Information Commissioner may decide not to continue to undertake the IC review (see 2.24–2.25).

Submissions

• The agency or minister must send their submissions to you at the same time as they send those submissions to the OAIC (2.27).
• You will be provided with a reasonable opportunity to make written submissions, and you must send your submissions to the agency or minister at the same time as you send those submissions to the OAIC (see 2.27).
• If you do not make submissions when the OAIC asks you to, the Information Commissioner may make a final decision without giving you any further opportunity to make submissions (see 2.28).
• Confidential submissions will not be accepted unless an application to make confidential submissions has first been received and accepted (see 2.30).

Information Commissioner decision

• All parties to the IC review will receive a copy of the written reasons for the decision and the decision will be published online (see 2.31).
• Decisions will quote or summarise submissions made unless they are confidential (see 2.32).
• Natural persons will not be named in the decision, unless they specifically request to be named by providing notice in writing during the IC review. Other applicants, such as organisations or companies, must provide reasons for wishing not to be named, which will be considered on a case-by-case basis (see 2.33).

Non-compliance

• If parties fail to comply with the direction the Information Commissioner may decide not to undertake or continue an IC review (see 3.1–3.3).

For further information: See Direction as to certain procedures to be followed by applicants in Information Commissioner reviews , Part 10 of the FOI Guidelines.