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The Office of the Australian Information Commissioner (OAIC) is seeking comments from interested stakeholders on the content, practical implications, readability and accessibility of updates to Part 3 of the FOI Guidelines: Processing and deciding on FOI requests (v 1.9).

Background

The Australian Information Commissioner can issue guidelines about the Freedom of Information Act 1982 (FOI Act) under s 93A. This section also requires Australian Government ministers and agencies to have regard to these guidelines when performing a function or exercising a power under the FOI Act.

The purpose of Part 3 of the FOI Guidelines is to provide guidance on processing and deciding on requests for access, including the formal requirements of an FOI access request, consultation, and the timeframe for notifying a decision. The proposed revisions to Part 3 aim to improve readability, reflect legislative changes to the FOI Act since the current version of Part 3 was issued in December 2021, and reflect relevant Federal Court, Administrative Appeals Tribunal and Information Commissioner review decisions.

Key changes

  1. [3.2] has been updated to clarify the meaning of a ‘person’ who has a legally enforceable right to obtain access to government documents (s 11(1)).
  2. [3.10] has been added to describe the effect of s 15A of the FOI Act relating to requests for access to personnel records.
  3. [3.93] – [3.126] now contain text from the current paragraphs [3.6] – [3.33] regarding the principles of good decision making under the FOI Act, under the heading Decisions on requests for access to documents.
  4. [3.18] – [3.19] have been added, describing how agencies and ministers may reduce the possibility of Artificial Intelligence (AI) generated FOI requests.
  5. [3.22] – [3.24] have been added to discuss the meaning of a ‘person’ who may request access to a document under s 15 of the FOI Act. Paragraph [3.42] clarifies that agencies and ministers must undertake a request consultation process, as set out in s 24AB of the FOI Act, before refusing a request on the basis that it does not satisfy the identification of documents requirement in s 15(2)(b).
  6. [3.43] – [3.49] expand on the current paragraphs [3.54] – [3.56] under the heading Interpreting the scope of the request by adding text from the current paragraph [3.110]. That text explains, for example, that a narrow or pedantic approach to construction is not acceptable.
  7. [3.30] – [3.42] include additional paragraphs under the subheading Assisting an applicant, which discuss the duty of an agency to take reasonable steps to assist the person to make the request in a manner that complies with the formal requirements of the FOI Act (s 15(3)).
  8. [3.70] has been updated to clarify the transfer requirements for documents originating with or received from an agency listed in Schedule 2 of the FOI Act.
  9. [3.77] – [3.92] have been updated to clarify and expand on the current paragraphs [3.74] – [3.82] under the subheading Consultation with third parties. In particular:
    • [3.80] has been added to refer to Chris Drake and Australian Transaction Reports and Analysis Centre (Freedom of information) [2023] AICmr 6 (8 February 2023) and explain that the third party consultation requirements in ss 26A, 27, and 27A are designed to ensure that third parties are given an opportunity to make submissions in support of a contention that a relevant exemption applies. However, the consultation requirements do not apply if an agency has formed the view that a relevant exemption or exemptions apply.
    • [3.82] – [3.84] have been added to discuss the arrangements that must have been entered into between the Commonwealth and a State about consultation (s 26A(1)(a)). These paragraphs also explain that these arrangements are held by the Attorney-General’s Department and provide a hyperlink to the National Library of Australia’s TROVE webpage 17 Mar 2012 - Freedom of Information Guidelines - Trove, which contains a link to a PDF copy of the arrangements.
    • [3.90] has been added to explain that when consulting a third party, the agency or minister should frame the consultation notice in a way that does not suggest a response, but rather places the onus on the third party to frame their own response and provide their own reasons.
  1. [3.129] – [3.144] reorder, clarify and expand on the current paragraphs [3.85] – [3.94] under the heading Refusing a request for a document that does not exist, cannot be found or is not received from a contractor. In particular:
    • [3.133] explains that the interpretation of the scope of an FOI request impacts search and retrieval of documents within the scope of the request
    • [3.137] – [3.144] refer to recent decisions about what constitutes taking all reasonable steps to find documents, and explain that documents may include records retained on personal devices or communicated through messaging apps.
    • [3.145] and [3.146] expand on the current paragraph [3.90] to explain, under a new subheading Advising the FOI applicant of the steps taken to find documents, how agencies and ministers may explain the steps taken to find documents within the scope of the request and include a hyperlink to the OAIC’s search minute template ‘Taking all reasonable steps to find documents in a freedom of information request’.
  2. [3.151] – [3.160] expand on the current paragraphs [3.95] – [ 3.100] under the heading Deleting exempt or irrelevant content from a document. These paragraphs explain, for example, that it will generally only be appropriate to delete public servants’ names and contact details as irrelevant under s 22 of the FOI Act if the FOI applicant clearly and explicitly states that they do not require that information. These paragraphs also contain references to recent decisions about deleting exempt or irrelevant information, including Bachelard v Australian Federal Police [2025] FCAFC 5 (3 February 2025).
  3. [3.165] – [3.174] expand on the current paragraphs [3.103] – [3.107] under the heading Refusing to confirm or deny existence of a document, including references to decisions that the current version of Part 3 does not include.
  4. [3.175] – [3.225] expand on the current paragraphs [3.108] – [3.136] under the heading Refusing access when a practical refusal reason exists. Paragraph [1.79] explains, for example, that agencies cannot refuse to deal with an FOI request on the basis that it is invalid because it does not meet the identification requirements in s 15(2)(b), and they must undertake a request consultation process under s 24AB before doing so. Paragraph [3.209] explains that an FOI request should only be treated as withdrawn where the applicant explicitly states this, or the applicant fails to consult the contact person or provide a response to the agency or minister during the consultation period.
  5. [3.230] has been added to explain that if the last day for notifying a decision falls on a Saturday, Sunday or a public holiday, the timeframe for notifying the decision will expire on the first business day following that day. That paragraph also describes certain matters in relation to which time spent is to be disregarded in calculating the processing period.
  6. [3.239] has been added to explain that a s 15AA agreement cannot be made once an FOI request has become a deemed refusal under s 15AC of the FOI Act.
  7. [3.249] has been added to explain that it is good practice for agencies and ministers to include information in their s 15(5)(a) acknowledgment letters that advise FOI applicants about their right to seek IC review if their request is not processed within the statutory timeframe, and provides hyperlinks to the OAIC’s sample acknowledgement letters on the OAIC’s website which include this information: Sample freedom of information notices.
  8. [3.287] – [3.288] have been added under the heading Giving applicants access to documents. Paragraph [3.287] explains that an agency or minister may choose to add a reference number or page numbers to a document before it is released to the FOI applicant. Paragraph [3.288] explains that while agencies and ministers may use SIGBOX and other secure file sharing/delivery with the FOI applicant’s agreement, agencies and minister need to be mindful of the Australian Privacy Principles.
  9. [3.295] expands on the current [3.201] – [3.202] in relation to giving applicants access to documents if there is an affected third party. Paragraph [2.95] explains that agencies and ministers should check directly with any affected third party whether that affected third party intends to apply for internal or IC review, including a date by which the third party should respond. Paragraph [2.95] suggests 3 working days as an appropriate timeframe to give the affected third party to respond.
  10. The following decisions have been added:

How to make comments

Submissions can be sent to:

Email: guidanceandpublications@oaic.gov.au

Post: GPO Box 5218 Sydney NSW 2001

The closing date for comments is 10 June 2025.

The OAIC intends to publish all submissions on the OAIC website. The OAIC is unable to consider any submission made in confidence, so please ensure your submission does not contain confidential information that you do not want to be made public.

Although you may make submissions electronically or by post, electronic lodgement is preferred. To help us meet our accessibility obligations, we would appreciate you make 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.

Related page

Version 1.8 of Part 3 of the FOI Guidelines, see www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-government-agencies/foi-guidelines/part-3-processing-and-deciding-on-requests-for-access#section-giving-applicants-access-to-documents

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