Agency Resource 9: Freedom of Information

Complaint and own motion investigations under the Freedom of Information Act 1982

September 2011

The Information Commissioner can investigate complaints about agencies under the Freedom of Information Act 1982 (FOI Act). The Commissioner can also initiate ‘own motion’ investigations. However, the Information Commissioner cannot investigate actions taken by a minister. The key principles and stages in the process are outlined below. You should refer to the FOI Guidelines for full details: Part 11 (Complaints and Investigations).

Receiving a complaint or commencing an own motion investigation

Flow chart A sets out the process that the Information Commissioner will follow after receiving a complaint or commencing an own motion investigation. For information about the process after an investigation is concluded, see Flow chart B.

Own motion investigations

The Information Commissioner can undertake an own motion investigation into an agency’s actions under the FOI Act (s 69(2)). This may cover:

• a single agency decision or action
• a systematic problem or recurring pattern in an agency’s practices and processes in handling FOI matters
• a practice or problem occurring in more than one agency.

Complaints to the Information Commissioner

A person may complain to the Information Commissioner about an agency’s action under the FOI Act (s 70(1)). The Information Commissioner is obliged to investigate a complaint (s 69(1)). A complaint must be in writing and identify the relevant agency (s 70(2)). The Office of the Australian Information Commissioner will assist a person who needs help to formulate their complaint (s 70(3)).

Preliminary inquiries

The Information Commissioner may make preliminary inquiries of the agency to help determine whether or not to investigate a complaint (s 72).

Deciding not to investigate

The Information Commissioner has the discretion not to investigate or continue investigating a complaint in the following circumstances (set out in s 73):

• the complaint does not relate to an action taken by an agency under the FOI Act
• the agency’s action could have been reviewed by the agency or another body (including where the complaint could be more appropriately dealt with as an Information Commissioner review)
• another body could have dealt with the complaint
• the agency has dealt adequately with the complaint
• the complaint is frivolous, vexatious or lacking in substance
• the complainant does not have a sufficient interest in the subject matter of the complaint.
  

Transfer of complaint to Ombudsman

The Information Commissioner can transfer a complaint (or part of a complaint) to the Commonwealth Ombudsman if satisfied that the Ombudsman could deal with it more effectively or appropriately (s 74(1)). All relevant documents will be transferred to the Ombudsman (s 74(3)(b)), and the complainant will be notified in writing with reasons for the Information Commissioner’s decision (ss 74(3)–(4)).

Notification of investigation and discontinuing an investigation

The Information Commissioner must notify an agency before beginning an investigation (s 75(1)). If the Information Commissioner decides not to investigate or not to continue investigating a complaint, the Commissioner must give a written notice to the complainant and the agency (s 75(3)). An agency must also be notified if the Commissioner discontinues an own motion investigation (s 75(3)).

Conduct of investigations

The same powers and processes apply to investigations of complaints and own motion investigations.

General powers

Investigations will be conducted in private and as the Information Commissioner considers fit (s 76(1)). The Information Commissioner may obtain information from an agency officer and make any relevant inquiry (s 76(2)).

Entering premises

A person authorised by the Information Commissioner may enter the premises occupied by an agency, or in certain circumstances premises occupied by a contracted service provider, to investigate or inspect documents (ss 77(1)–(2)).

The authorised person can only enter premises if the principal officer of the agency or, in the case of a contracted service provider, the person in charge consents (s 77(3)). The authorised person must leave the premises if the consenting person asks (s 77(4)).

Certain places require written ministerial approval before entry is allowed (s 78(1)). The Attorney-General may also prohibit entry to a place by declaration, if satisfied an investigation may prejudice the security or defence of the Commonwealth (ss 78(3)–(4)).

Compulsory powers

The Information Commissioner has certain compulsory powers:

• to require production of information and documents (ss 79–80)
• to require production of exempt documents (s 81)
• to require a person to attend to answer questions and to take an oath or make an affirmation (ss 82–83).

Protection from liability

The FOI Act protects those who make a complaint in good faith or give information, produce documents or answer questions during an investigation (ss 85, 89E). Legal professional privilege is not affected (s 84).

Completing an investigation

The Information Commissioner must provide a notice of completion to the agency (s 86(1)) and (unless it was an own motion investigation) to the complainant (s 86(4)). This notice must include (s 86(2)):

• the investigation results
• the investigation recommendations (if any), and
• the reasons for those results and recommendations.

If the notice would include exempt matter, the Information Commissioner must prepare a copy of the notice for the complainant that excludes those matters (s 86(5)).

The ‘investigation results’ under s 87 are:

• the matters that the Information Commissioner has investigated
• any opinion that the Information Commissioner has formed in relation to those matters
• any conclusions that the Information Commissioner has reached
• any suggestions that the Information Commissioner believes might improve the agency’s processes
• any other information of which the Information Commissioner believes the agency should be aware.

Investigation recommendations

The ‘investigation recommendations’ (s 88) are the formal recommendations to an agency that the Information Commissioner believes the agency ought to implement. See Flow chart B for further details.

Recommendations of an investigation

Flow chart B sets out the process that the Information Commissioner will undertake once recommendations have been issued under s 88.

Failure to implement an investigation recommendation

If the Information Commissioner completes an investigation, gives an agency a notice under s 86, and is not satisfied that the agency has taken adequate and appropriate action to implement a recommendation, the Information Commissioner may issue an ‘implementation notice’ (s 89(2)). An implementation notice requires an agency to give to the Information Commissioner within a specified time particulars of any action the agency will take to implement the recommendation.

Failure to take action in response to an implementation notice

If the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement the recommendations, or if the agency has not responded to the implementation notice within the specified time, the Information Commissioner may report to the minister responsible for the agency and the minister responsible for the FOI Act (s 89A(2)).

Section 89B prescribes the matters that must be addressed in a report to ministers, including the action that the Information Commissioner believes would be adequate and appropriate to implement the investigation recommendations. The report must not include exempt matter (s 89C).

Tabling of report in Parliament

The minister responsible for the FOI Act must table the report before each House of the Parliament (s 89A(5)).

 

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