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What happens when we receive your application?
We’ll let you know in writing when we’ve received your application.
After receiving your application, we’ll assess it and do one of the following:
- we may advise you that that OAIC is not able to consider your application
- we may request further information from you or the agency or minister
- we may commence an IC review and make a decision
- we may decide not to review or continue to review your application
Consideration of whether we are able to review your application
After receiving your application, we may seek relevant information from you or the agency or minister. For example, if you have not given us a copy of the agency’s decision, or in the case of a deemed decision, your FOI request, we may ask you for a copy. If you do not provide a copy, we may advise you that we cannot accept your application. This is because there are requirements set under the FOI Act that we must apply.
If you disagree with our decision not to review your application, you may apply to the Federal Court.
You can withdraw your IC review application at any time before the Information Commissioner makes a decision. If you want to withdraw your application, you must write and tell us.
Review process: commencement, engagement with agencies or ministers and providing submissions
If we decide to commence an IC review, we let you know, in writing.
We also let the agency or minister know, in writing, that we’ve commenced an IC review and what information we need from them.
In most matters, we require agencies and ministers to engage with you to resolve or narrow the issues in dispute in the IC review. This may occur via telephone or video conference. We do not participate in this engagement and the agency or minister will be responsible for contacting you and making the necessary arrangements.
If you do not participate in the engagement process without reasonable excuse, we may decide not to continue the IC review.
At any time during the IC review the agency or minister may make a new decision providing you with further access to documents. If you are satisfied with the new decision, you may withdraw your IC review.
During an IC review, you will be given a reasonable opportunity to present your case. This generally includes having the opportunity to comment on relevant, adverse information provided to the OAIC by the agency or minister, or by other parties.
In seeking submissions from agencies and ministers, we will require the agency or minister to send their submissions to you at the same time as they are sent to us. You will then have the opportunity to make submissions in response. You should send your submissions to the agency or minister at the same time as they are sent to us.
Further information is available in the procedure direction for applicants
We may decide not to review your application
We may decide not to undertake an IC review, or not to continue to undertake an IC review, if we consider:
- the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; or
- you have failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse; or
- we cannot contact you after making reasonable attempts; or
- we are satisfied that the interests of the administration of the FOI Act make it desirable that the IC reviewable decision be considered by the Administrative Review Tribunal; or
- you fail to comply with a direction of the Information Commissioner.
If we decide not to review or continue to review your application, we will write to you to let you know and the reasons why.
Receiving a decision by a Commissioner or delegate under s 55K
If the IC review remains unresolved, and once all procedural fairness steps have been taken, the Commissioner or their delegate will make a decision under s 55K of the FOI Act (IC review decision) to either:
- set aside the agency or minister’s decision and make a new decision (the original decision is replaced with a new decision)
- affirm the decision (the original decision stays) or
- vary the decision (only some parts of the original decision are changed).
The Commissioner or their delegate will give reasons for their decision and let all parties involved know in writing of their decision.
We publish all Information Commissioner review decisions. Your name as the applicant will not be disclosed, unless you provide your consent.
If you or the agency or minister are not happy with the Information Commissioner’s decision, you have 28 days to appeal to the Administrative Review Tribunal.
An application to the ART must be made within 28 days of the day on which you are given the IC review decision. An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.
Frequently asked questions about IC review decisions under s 55K of the FOI Act
The OAIC is unable to reconsider or remake an IC review decision once the decision has been made. The OAIC has very limited power to take any further action in relation to a finalised decision (see Q10 below). If you disagree with the decision, you may exercise your review rights, which are at the end of the decision (and summarised below).
You may apply to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.
An application to the ART must be made within 28 days of the day on which you are given the IC review decision. An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.
You can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.
You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman’s website at http://www.ombudsman.gov.au.
We make our decisions based on the information before us at the time of our decision. The OAIC is unable to reconsider or remake an IC review decision once the decision has been made in light of new evidence.
If you disagree with the decision, you may apply to have the decision reviewed by the ART. The ART provides independent merits review of administrative decision and can consider new information which was not before the OAIC.
The OAIC is unable to give you a copy because it is prohibited from disclosing exempt documents under s 55T(5) of the FOI Act.
The agency or minister that made the reviewable decision is responsible for complying with the IC review decision and providing you with access to the documents in accordance with the IC review decision.
Timeframes for compliance are set out in our decisions (where required), usually at paragraph [2].
Generally, the timeframes are:
- For practical refusal and searches decisions, the agency or minister must comply with the decision or advise the OAIC whether it will be seeking review of the decision by the ART within 30 days of the decision
- For other decisions, the agency or minister must comply with the decision or advise the OAIC whether it will be seeking review of the decision by the ART within 28 days of the decision.
In certain circumstances, such as where the agency originally consulted with affected third parties in relation to ss 47F, 47G or 47B, the agency or minister will be unable to give you access to the document unless all the opportunities of the third parties to review or appeal the IC review decision have expired.
The OAIC is unable to assist you in those circumstances. If you are dissatisfied with the information the agency has released to you as a result of the decision, you may exercise your review rights. Information about review rights are on the last page of each decision (noting the time limits for review).
Once the decision has been made the OAIC has very limited power to take any further action in relation to a finalised decision (see FAQ 10 below). It is the agency or minister’s responsibility to comply with the Commissioner’s decision. We do not provide further advice or information to supplement or interpret the reasoning that has been provided for in the decision.
If an agency or minister fails to comply, you or the Information Commissioner may apply to the Federal Court for an order directing them to comply (s 55P(1)).
The application under s 55P can only be made after the period a respondent has to apply to the ART for review of the decision has expired. The Information Commissioner will only take such action where such an application would be warranted in the circumstances. Factors which the IC may consider when exercising this power are outlined at [10.133] of the FOI Guidelines.
