Publication date: 9 May 2023
This consultation is closed. The deadline for submissions was 30 June 2023.
The Office of the Australian Information Commissioner (OAIC) is seeking comments from interested stakeholders on the content, practical implications, readability and accessibility of draft revisions to the ‘Direction as to certain procedures to be followed in Information Commissioner reviews’ (for agencies) and the ‘Direction as to certain procedures to be followed by applicants in Information Commissioner reviews’.
Under s 55(2)(e)(ii) of the Freedom of Information Act 1982 (FOI Act) the Australian Information Commissioner has power to give written directions as to the procedure to be followed in relation to IC reviews generally.
The purpose of the ‘Direction as to certain procedures to be followed in Information Commissioner reviews’ is to clearly set out the procedures that agencies and ministers are required to follow during IC reviews in respect of the production of documents, engagement with IC review applicants, administration of deemed access refusal decisions and the provision of submissions. The changes in the updated Direction are intended to facilitate greater engagement between applicants and respondent agencies and ministers during the IC review with a view to resolving IC reviews in a more timely and cost effective way.
The purpose of the ‘Direction as to certain procedures to be followed by applicants in Information Commissioner reviews’ is to assist IC review applicants better understand how the IC review process operates and their obligations with respect to their IC review application.
The revised ‘Direction as to certain procedures to be followed in Information Commissioner reviews’:
- clarifies the process for dealing with IC review applications involving deemed access refusal decisions
- requires agencies and ministers to undertake engagement with an applicant at the commencement of an IC review
- clarifies the requirement for agencies and ministers to provide a marked up and unredacted copy of the documents at issue in an IC review, as well as a schedule of documents
- provides that submissions will only be requested after the completion of the initial triage and early resolution process, and following any case management activities that may occur as a result of the compulsory engagement process
- provides that no further submissions will be accepted from either party to an IC review (unless either requested by the OAIC or procedural fairness requirements are identified)
- articulates additional potential regulatory action for non-compliance with the direction.
The ‘Direction as to certain procedures to be followed by applicants in Information Commissioner reviews’ has some minor updates to give effect to the changes in the ‘Direction as to certain procedures to be followed in Information Commissioner reviews’.
When the OAIC has considered submissions made in response to this consultation, Part 10 of the FOI Guidelines (Review by the Information Commissioner) will be updated.
How to make comments
Submissions can be made by:
GPO Box 5218 Sydney NSW 2001
The closing date for comments is Friday 30 June 2023.
We intend to make all submissions publicly available. Please indicate when making your submission if it contains confidential information that you do not want made public and why it should not be published. Requests for access to confidential comments will be determined in accordance with the FOI Act. If the OAIC accepts submissions in confidence you must also provide a copy that can be published.
Although you may lodge submissions electronically or by post, electronic lodgement is preferred. To help us meet our accessibility obligations, we would appreciate you providing your submission in a web accessible format or, alternatively, in a format that will allow us to easily convert it to HTML code — for example Rich Text Format (.rtf) or Microsoft Word (.doc or .docx) format.
Privacy collection statement
The OAIC will use the personal information it collects in the course of this consultation for the purpose of finalising the updates to the guidelines and our ongoing engagement with you.
The OAIC received 12 submissions from agencies providing comments and feedback on the proposed revised procedure directions. Copies of those submissions are below.
The OAIC will consider the feedback. Once the final procedure directions are settled, the FOI reviews webpage will be updated, and those amendments will also be communicated through our Information Contact Officer Network (ICON) and the Information Matters newsletter.