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Chapter 2: Review of FOI decisions

Introduction

Under the FOI Act, an applicant who is dissatisfied with the decision of a minister or an agency on their initial FOI request has several avenues for review or redress. The applicant can first seek internal review; then external merits review by the Information Commissioner (IC review); then review by the Administrative Appeals Tribunal (AAT); then appeal, on the basis of an error of law, to the Federal Court or the High Court. In addition, an applicant may make a complaint at any time to the Information Commissioner about an agency's actions under the FOI Act.

Third parties that have been consulted in the FOI process-State governments (ss 26A and 33A), commercial organisations (ss 27 and 43) and private individuals (ss 27A and 41)-have the same review rights as an FOI applicant in the event that an agency decides to release documents contrary to their submission.

Agencies are encouraged to delegate the authority to make initial decisions to staff at the lowest practicable level. This assists agencies to deal with requests efficiently in the first instance and to conserve the time spent by senior officers on FOI matters. The internal review procedure then allows an agency to reconsider its initial decision at a more senior level before IC review occurs.

Section 23 of the FOI Act permits the responsible Minister or the principal officer of an agency either to make decisions themselves or to authorise officers of the agency to make decisions. There is no express power in the FOI Act for a minister to authorise another person to make a decision on an FOI request received by the minister. The Information Commissioner's view is that it is nevertheless open to a minister to authorise senior members of the minister's staff or an agency to make such decisions.

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Internal review

A person who is dissatisfied with an agency's access refusal or access grant decision can apply either for internal review or IC review of that decision. Internal review is not available if the initial decision-maker is the responsible minister or the principal officer of the agency.

A person is not required to apply for internal review before applying for IC review. However, the Information Commissioner recommends that applicants apply for internal review before applying for IC review. This is especially so where the decision maker has to have regard to other legislation, together with the FOI Act, in deciding whether to grant access. If secrecy provisions in that other legislation apply to the documents sought, the decision maker may have discretion to release documents that the Information Commissioner would not have on IC review.

The role of the internal review officer is to bring a fresh, independent and impartial mind to the review. To the extent possible, the officer should not have been involved in or consulted in the making of the decision under review. Internal review is a merit review process. The internal review officer can decide all issues raised by an applicant's FOI request, and exercise all the powers available to the original decision maker. The internal review officer may rely on work undertaken by the original decision maker, or may cause the same work to be undertaken again. All the material available to the original decision maker should be available to the internal review officer. The internal review officer may consider additional material or submissions not considered by the original FOI decision maker.

In 2010-11, 419 requests were made for internal review of FOI decisions, 7.7% more than in the previous year. Of these, 236 were for review of decisions on requests for documents containing personal information (a 5.4% increase), and 183 were for review of decisions on requests for other (non-personal) information (an increase of 10.3%). Appendix E gives details of internal review applications and results, as reported by agencies, broken up by requests for personal information and for other information.

In 2010-11, agencies made 367 decisions on internal review-the same number as in 2009-10. Of these, 170 (46.3%, an increase of 8.3% on the previous year) affirmed the original decision, 54 (14.7%) were granted in full and 143 (39.0%) resulted in some concession by agencies to applicants. Nine applications for internal review were withdrawn.

There were 64 requests for internal review of decisions concerning amendment of personal records, six fewer than in 2009--10. In 26 of these decisions, five more than in the previous year, the application was granted in whole or in part (see Appendix H).

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Information Commissioner review

Part VII of the FOI Act sets out the Information Commissioner's functions and powers in relation to review of decisions under the FOI Act. These functions and powers can also be exercised by the FOI Commissioner and the Privacy Commissioner, who also have the ‘freedom of information functions'.[1] In practice, the FOI Commissioner usually exercises the Part VII review functions.

IC review is a merit review process. The Information Commissioner does not simply review the reasons given by the agency or minister, but determines the correct or preferable decision in the circumstances. The Information Commissioner can access all relevant material, including material that the agency or minister claims is exempt. The Information Commissioner can also consider additional material or submissions not considered by the original decision maker, including relevant new material that has arisen since the decision was made. If the Information Commissioner finds that the original decision was not correct in law or not the preferable decision, the decision can be varied or set aside and a new decision substituted.

IC reviews are intended to be a simple, practical and cost efficient method of external merit review. Most matters are reviewed on the papers rather than through formal hearings. This is consistent with the objects of the FOI Act, which provides that functions and powers are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost (s 3(4)). The Information Commissioner also provides appropriate assistance to IC review applicants to make their applications (s 54N(2)).

Agencies and ministers must use their best endeavours to assist the Information Commissioner to make the correct or preferable decision in relation to access to information held by the Government (s 55DA). All parties are also encouraged to minimise their use of legal representation in IC review proceedings, to reduce formality and costs.

In the period 1 November 2010 to 30 June 2011, the Information Commissioner received 176 applications for IC Review raising 210 review issues. All but three of the applications sought review of access refusal decisions; three applications were for review of access grant decisions.

Upon receipt a request is evaluated to see if it is a valid review application. The Office of the Australian Information Commissioner (OAIC) may also make preliminary inquiries to determine whether to undertake an IC review.

Twenty-nine of the applications were finalised by 30 June 2011. Four of these were concluded through a published decision of the Freedom of Information Commissioner, affirming the agency decision in two cases and setting aside the agency decision and making a substituted decision in the other two. The full text of each IC review decision is available on both the OAIC website[2] and the AustLII website.[3]

Eighteen IC review requests were identified as invalid; consideration was given to whether these could be usefully responded to as a complaint or enquiry, or assistance provided to the applicant to make a valid review application.

The most common reason affecting validity was that the original FOI request was made prior to 1 November 2010. In some other cases, applicants had sought review before there was a reviewable decision, such as a decision on the imposition of a charge. The remainder of review applications finalised were either resolved by agreement, withdrawn, or closed at the discretion of the Commissioner.

Many IC reviews can be resolved through agreement between the parties rather than through a formal decision by the Commissioner. The OAIC has encouraged resolution by agreement between the parties. This is particularly useful where the decision for which IC review is sought is a deemed decision or turned on the exercise of discretion to impose a charge. Many disputes can arise from a misunderstanding between the parties, including about issues underlying the FOI request, and the IC review process can be a catalyst for reopening communication and resolving the dispute.

Table 2.1 provides a breakdown by agency/minister of IC review applications in 2010-11.

Table 2.1 Information Commissioner reviews by agency / minister
Agency Access grant decision Access refusal decision Total
Department of Immigration and Citizenship 1 26 27
Australian Securities and Investments Commission   17 17
Centrelink   16 16
Australian Taxation Office   15 15
Australian Federal Police   9 9
Fair Work Ombudsman   5 5
Office of the Prime Minister   5 5
Australian Broadcasting Corporation   4 4
Department of Broadband, Communications and the Digital Economy   4 4
Department of Foreign Affairs and Trade   4 4
Child Support   3 3
Commonwealth Scientific and Industrial Research Organisation   3 3
Department of Climate Change and Energy Efficiency   3 3
Department of Education, Employment and Workplace Relations   3 3
Department of Infrastructure and Transport   3 3
Department of the Prime Minister and Cabinet   3 3
Airservices Australia   2 2
Attorney-General's Department   2 2
Australian Human Rights Commission   2 2
Australian Maritime Safety Authority   2 2
Australian Nuclear Science and Technology Organisation   2 2
Commonwealth Ombudsman   2 2
Department of Finance and Deregulation   2 2
Department of Health and Ageing   2 2
Department of the Treasury   2 2
Department of Veterans' Affairs   2 2
Australian Curriculum Assessment and Reporting Authority   1 1
Australian Customs and Border Protection Service   1 1
Australian Competition and Consumer Commission   1 1
Australian Health Practitioner Regulation Authority   1 1
Australian National University   1 1
Australian Postal Corporation   1 1
Australian Prudential Regulation Authority   1 1
Australian Research Council   1 1
Australian Sports Commission   1 1
Australian Trade Commission   1 1
Australian Agency for International Development   1 1
Bureau of Meteorology   1 1
Civil Aviation Safety Authority   1 1
Office of the Commonwealth Director of Public Prosecutions   1 1
Department of Agriculture, Fisheries and Forestry   1 1
Department of Health and Ageing   1 1
Department of Innovation, Industry, Science and Research   1 1
Department of Resources, Energy and Tourism   1 1
Department of Sustainability, Environment, Water, Population and Communities 1   1
Department of Families, Housing, Community Services and Indigenous Affairs   1 1
Office of the Official Secretary to the Governor-General   1 1
Integral Energy   1 1
IP Australia incl Trade Marks Office   1 1
Minister for Foreign Affairs   1 1
Minister for Infrastructure and Transport   1 1
Migration Review Tribunal   1 1
NBN Co Limited   1 1
National Library of Australia   1 1
National Offshore Petroleum Safety Authority   1 1
Senator Kim Carr   1 1
Social Security Appeals Tribunal   1 1
Therapeutic Goods Administration   1 1
Total 2 174 176

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Administrative Appeals Tribunal review

An application can be made to the Administrative Appeal Tribunal (AAT) for review of the following FOI decisions:

  • a decision of the Information Commissioner on an ICreview, and
  • an IC-reviewable decision (that is, an original decision or an internal review decision), but only if the Information Commissioner decides, under s54W(b), that the interests of the administration of the FOIAct make it desirable that the ICreviewable decision be considered by the AAT.

An application for the review of one of these decisions may be made by a person whose interests are affected by the decision.[4] As with IC review, the AAT conducts a merit review process.

The AAT's decisions are appealable, but only in relation to errors of law, to the Federal Court of Australia. The fee for an application to the AAT increases on each biennial anniversary of 1 July 1996, based on a calculation related to the Consumer Price Index. The fee during the reporting period was $777.

Chart 2.1 shows the number of FOI applications recorded by the AAT since 1983-84.

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Long text description of Chart 2.1

Table 2.2 provides a breakdown by agency/minister of applications to the AAT in FOI matters in 2010-11. This data has been provided by the AAT. As in some of the appendices, the data in this table has been disaggregated for each of the two periods that make up the reporting period.

Table 2.2 AAT reviews by agency / minister
Agency Applications % of total applications
First 4 months Second 8 months Total
Department of Immigration and Citizenship /
Minister for Immigration and Citizenship
16 4 20 24.4
Australian Taxation Office 3 7 10 12.2
Department of the Prime Minister and Cabinet /
Prime Minister
4 3 7 8.5
Centrelink 3 3 6 7.3
Australian Federal Police 3 2 5 6.1
Department of Health and Ageing 4 1 5 6.1
Australian Securities and Investments Commission 2 2 4 4.9
IP Australia 3 0 3 3.7
Attorney-General's Department 1 1 2 2.4
Australian Customs and Border Protection Service 1 1 2 2.4
Child Support 0 2 2 2.4
Department of Finance and Deregulation 1 1 2 2.4
Migration Review Tribunal 2 0 2 2.4
Superannuation Complaints Tribunal 1 1 2 2.4
Department of the Treasury 0 2 2 2.4
Australian Communications and Media Authority 1 0 1 1.2
Commonwealth Ombudsman 0 1 1 1.2
Department of Agriculture, Fisheries and Forestry 0 1 1 1.2
Department of Defence 1 0 1 1.2
Department of Foreign Affairs and Trade 0 1 1 1.2
Department of Innovation, Industry, Science and Research 0 1 1 1.2
Department of Sustainability, Environment, Water, Population and Communities 0 1 1 1.2
National Offshore Petroleum Safety Authority 0 1 1 1.2
Total 82 100.0

Table 2.3 shows the outcome of decided applications to the AAT. This data has been provided by the AAT.

Table 2.3 Outcome of decided applications to the AAT from 2010 to 2011
Outcome Total
By consent/withdrawn
Affirmed 2
Set Aside 17
Varied 0
Dismissed 4
Withdrawn 37
By decision
Affirmed 18
Set Aside 8
Varied 5
Other
Dismissed by Tribunal 10
No application fee paid 5
Extension of time refused 2

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Complaints to the Commonwealth Ombudsman

Complaints about the handling of FOI requests received by Australian Government agencies before 1 November 2010 (including decisions, delays, and refusal or failure to act) were directed to the Commonwealth Ombudsman. Since the establishment of the Office of the Australian Information Commissioner on 1 November 2010, complaints about agencies' handling of FOI requests are now primarily dealt with by the Australian Information Commissioner. The Commonwealth Ombudsman may still investigate complaints relating to FOI where that would be more appropriate or effective (for example, where the FOI complaint is only one part of a wider grievance about an agency's actions). In such cases the Australian Information Commissioner and the Commonwealth Ombudsman will consult.

During the year, the Ombudsman received 146 complaints and approaches about FOI matters and finalised 177 complaints and approaches about 180 issues. Table 2.4 provides further details - this data has been provided by the Office of the Commonwealth Ombudsman.

Table 2.4 Ombudsman FOI complaints ⁄ approaches received and finalised 2010 to 2011
Agency Complaints/Approaches Received Issues Finalised
Child Support 30 33
Centrelink 25 34
Australian Taxation Office 10 9
Department of Immigration and Citizenship 9 13
Department of Education, Employment and Workplace Relations 6 9
Department of Foreign Affairs and Trade 6 7
Department of Veterans' Affairs 6 7
Australian Federal Police 6 12
Australian Customs and Border Protection Service 4 4
Office of the Australian Information Commissioner 4 2
Attorney-General's Department 3 3
Others 37 47
Total 146 180

In his annual report for 2010-11, the Ombudsman notes that the complaints related to a range of issues including agency delay, lack of explanation for exemptions claimed, and issues concerning FOI fees and charges.

Of the complaints finalised about FOI requests, 104 were about access to personal documents and 76 about access to general documents. Remedies for the complaints which were recommended by the Ombudsman included expedited processing of delayed FOI requests together with an apology to the applicant, and better explanation of reasons for exemptions claimed or for fees and charges imposed.

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Complaints to the Information Commissioner

In the eight months from 1 November 2011, the OAIC received 88 FOI complaints and finalised 39 of these. No own motion FOI investigations were commenced in 2010-11.

The 88 complaints received by the OAIC in an eight month period is comparable to the 137 FOI complaints received by the Commonwealth Ombudsman in the full 2009-10 financial year.[5]

Table 2.5 lists the respondent agencies that have been the subject of more than two complaints.

Table 2.5 Agencies subject to more than two complaints
Respondent agency Total
Child Support 13
Centrelink 11
Department of Immigration and Citizenship 9
Australian Taxation Office 8
Department of Veterans' Affairs 5
Australian Securities and Investments Commission 4
Fair Work Ombudsman 3
Australian Federal Police 3

The most frequently raised issue in FOI complaints was processing delay (38 complaints). Many complaints about timeliness overlapped with issues about communication. Complaints could be avoided if agencies maintained open and regular communication with FOI applicants, assisting them to focus the scope of FOI requests so that they can be completed in a timely manner. Applicants are more willing to agree to extend processing times, or accept that extra time is necessary, if they understand the difficulties that agencies face in processing the requests and are kept informed about the progress of their requests. The OAIC has been working to encourage better communication between FOI applicants and agencies about processing of requests, both when complaints arise, and through its day-to-day engagement with agencies in the processing of extension of time requests.

For those issues investigated, most were able to be resolved with the agency and finalised as adequately dealt with. Four complaints (which raised six issues) were finalised under s 86 and the agencies were notified of the investigation outcomes.

In his 2009-10 annual report, the Commonwealth Ombudsman noted that, in response to some complaints, the Ombudsman had suggested that an agency provide additional resources to manage processing of FOI requests.[6] The OAIC has not yet made any formal recommendations to agencies about resource allocation, and is aware informally that many agencies have committed extra resources to FOI work. It is evident that the FOI reforms have resulted in a significantly higher volume of FOI requests being processed by some agencies. Agencies must ensure that they allocate adequate resources to meet their obligations under the FOI Act.

Table 2.6 indicates the method by which the 39 complaints to the OAIC in 2010-11 were finalised.

Table 2.6 Method for finalising complaints
Closure method Number
s 86 - notice of investigation outcomes provided to agency 3
s 70 - complaint not in jurisdiction 11
s 73(a) - complaint action not related to FOI 2
s 73(d)(i) - agency adequately dealt with complaint 13
s 73(d)(ii) - agency is currently dealing with complaint 2
s 73(e) - complaint frivolous, vexatious or lacking in substance 2
s 73(f) - complainant has insufficient interest 1
Complaint withdrawn 5

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Footnotes

[1] Sections 8, 11 and 12 of the Australian Information Commissioner Act 2010.

[2] www.oaic.gov.au/publications/decisions.html

[3] www.austlii.edu.au/au/cases/cth/AICmr/

[4] Section 27 of the Administrative Appeals Tribunal Act 1975.

[5]Commonwealth Ombudsman Annual Report 2009-10, page 83. Note, however, that the scope of Information Commissioner complaints is narrower than were Ombudsman FOI complaints, which included complaints about the merits of FOI decisions.

[6]Commonwealth Ombudsman Annual Report 2009-10, page 83.


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Chart 2.1

Table of Chart 2.1: number of FOI applications recorded by the AAT since 1983
Year Applications
1983 to 1984 200
1984 to 1985 310
1985 to 1986 267
1986 to 1987 171
1987 to 1988 80
1988 to 1989 101
1989 to 1990 73
1990 to 1991 68
1991 to 1992 74
1992 to 1993 78
1993 to 1994 129
1994 to 1995 113
1995 to 1996 118
1996 to 1997 117
1997 to 1998 122
1998 to 1999 140
1999 to 2000 109
2000 to 2001 150
2001 to 2002 99
2002 to 2003 118
2003 to 2004 158
2004 to 2005 142
2005 to 2006 141
2006 to 2007 120
2007 to 2008 142
2008 to 2009 139
2009 to 2010 110
2010 to 2011 82

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