The Office of the Australian Information Commissioner (OAIC) conducts investigations of freedom of information (FOI) complaints received under s 70 of the Freedom of Information Act 1982 (FOI Act) regarding the actions of agency’s in the performance of their functions or the exercise of their powers under the FOI Act.
It is important that you raise your concerns first with the agency. This will provide the agency with an opportunity to deal with your complaint. Section 73 of the FOI Act provides that the Australian Information Commissioner (Information Commissioner) may decide not to investigate, or not to continue to investigate, a complaint under specific circumstances. This includes where you have a right to have your complaint reviewed by the agency, have not exercised that right and it would be reasonable for you to do so. Other reasons why the OAIC may decide not to investigate, or not to continue to investigate a complaint, include if the complaint is frivolous, vexatious or lacking in substance.
There are a number of stages to a complaint. The OAIC’s investigation of your complaint may result in the agency addressing the issues that you have complained about. In other cases the OAIC may make suggestions or recommendations that the agency should implement. You and the agency will be notified in writing of the outcome of the investigation.
Stage 1 — Registration
Your complaint is registered and an early assessment made to ensure it includes all key information initially required for an investigation (such as details of, and agency response to, your attempt to resolve the matter directly with them). A letter acknowledging the receipt of your complaint will be sent to you. The agency you have complained about is notified of your application.
A staff member may record a suggested approach to the complaint during this stage to assist the investigating case officer.
Stage 2 — Preliminary inquiries
A case officer is assigned to your application. They will advise you and the agency (the parties to the complaint) that they are handling the application and provide you with their contact details.
Due to the OAIC currently processing a large number of complaints and applications for review there may be a delay in your matter being allocated to a case officer.
The case officer may make preliminary inquiries of the parties for the purpose of determining whether or not to investigate a complaint. This may include determining if you have raised your complaint with the agency initially.
Stage 3 — Investigation
If the application is assessed as containing valid reasons for investigation, the case officer will progress the application to formal investigation. Both the applicant and the agency will receive a notice of this under s 75 of the FOI Act.
The guiding principle in a complaint investigation is that it shall be conducted in private and in the way the OAIC considers fit. In conducting the investigation the OAIC has the power to:
- make inquiries of an agency
- obtain information from any person
- take possession of, or inspect, any relevant documents.
Stage 4 — Outcome of Investigation
On completing an investigation, you and the agency will be notified in writing of the outcome of the investigation. In some cases the OAIC’s investigation and intervention may result in the agency addressing the issues that you have complained about. In other cases the OAIC may make suggestions or recommendations that the agency should implement. The notice will include any investigation results, investigation recommendations and the reasons for those results and recommendations.
If an agency fails to take adequate and appropriate action to implement any recommendations, the OAIC may issue a formal implementation notice. This notice requires the agency to explain what action it will take to implement the recommendations. The OAIC may also provide a written report to the minister responsible for the agency, and the report will be tabled in Parliament.
Further information on the review process undertaken by the OAIC is available in the Guidelines issued under section 93A of the Freedom of Information Act 1982, specifically Part 11 – Complaints and investigations.