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Message from FOI Commissioner Toni Pirani
Welcome to our April ICON alert.
As prefaced in the last edition, the Information Commissioner has now issued an updated version of Part 2 of the FOI Guidelines.
The updated Guidelines explain that ministers have a duty to preserve an FOI applicant’s right to have their FOI request determined, including on review or appeal. Under 2 new headings, 'Responsibilities of outgoing ministers', and 'Responsibilities of incoming ministers', they explain how ministers may discharge that duty in various circumstances, including where there is a change of government.
The updated guidelines also explain that a requested document should be assessed as an ‘official document of a minister’ at the time when the request is made, and only that time. This reflects the decision of the Full Federal Court in Attorney-General v Patrick [2024] FCAFC 126. They also explain that a document is not an ‘official document of a minister’ if it is a ‘document of an agency’ as held by the Federal Court on the initial appeal in Patrick v Attorney-General [2024] FCA 268 and applied in the recent IC review decision Geoffrey Shafran and Minister for Veterans' Affairs and Defence Personnel (Freedom of information) [2025] AICmr 46 (4 March 2025). This approach is expected to significantly change how agencies and ministers process FOI requests seeking minister’s documents.
On a related note, I have also recently decided the matter of 'AVH' and Prime Minister of Australia (Freedom of information) [2025] AICmr 72 (16 April 2025) which finds that documents related to the Prime Minister’s attendance at a Taylor Swift concert are not “official documents of a Minister” and are therefore outside the scope of the FOI Act. Based on evidence provided on behalf of the Prime Minister that no department or agency was involved in arranging or planning his attendance or providing briefing, I was satisfied that the documents do not “relate to the affairs of an agency” which is a requirement for a document to be “an official document of a Minister”.
Reminder – Quarterly FOI stats
We are currently processing and finalising the FOI Statistics quarter 3 returns (1 Jan to 31 March) which were due by 21 April 2025. Please put in your planning calendar that quarter 4 returns (1 April to 30 June) are due by 21 July. For further information, see the FOIStats guide for further guidance on uploading FOI Statistics. Please contact us if you have any questions.
Extensions of time webinar
Thank you to those who attended our recent Extensions of Time webinar for FOI practitioners, covering timeframes for processing FOI requests and the ins and outs of extensions to those timeframes.
Key takeaways from the session included:
- The FOI processing period calculator is available on the OAIC website: it assists practitioners to calculate the period during which they are required to process access requests.
- Remember, it is best practise to update an FOI applicant on the progress of their request and to consider the need for an extension of time early in the processing period.
Further information is available in our Agency resource: Apply for an extension of time to process a Freedom of Information request
Upcoming IC review practice update webinar
The second webinar in our series of webinars for FOI practitioners in 2025 will be held at 10:30 - 11am on 27 May 2025.
The webinar will provide an update on the OAIC’s IC review practice. It will discuss the OAIC’s approach to case management and decision-making in the context of recent IC review decisions, as well as decisions by the ART and Federal Court. In addition, the webinar will discuss s 55G decisions, and case management and decision-making in IC reviews involving third parties.
We will publish information about the full series of webinars for FOI practitioners in upcoming ICON newsletters.
FOI processing period calculator
We have created a new resource for government agencies to use to assist with FOI processing.
The Freedom of Information processing period calculator is an interactive tool created in Excel, which assists Freedom of Information practitioners to calculate the period during which they are required to process access requests made under the Freedom of Information Act 1982 (Cth).
The calculator takes into account the full variety of factors that may affect the default processing period set out in s 15(5)(b) of the FOI Act. In order to maintain the integrity of the factors applied within the calculator, it is a password protected spreadsheet.
Reminder – providing submissions and s 55G decisions to applicants at the same time as the OAIC
As noted in paragraphs [3.23] and Annexure A.1(3.2) of the Procedure Direction, in seeking submissions from agencies and ministers in support of the IC reviewable decision, the OAIC will require the agency or minister to send their submissions and/or s 55G decisions to the applicant at the same time as they are sent to the OAIC.
The applicant will then have the opportunity to make submissions in response. The applicant will be required to send their submissions to the agency or minister at the same time as they are sent to the IC.
FOI Guidance update
Revisions to FOI Guidelines – Part 2
As discussed above, the OAIC has revised Part 2 of the FOI Guidelines, which discusses the scope of application of the FOI Act , to reflect the decision of the Full Federal Court in Attorney-General v Patrick [2024] FCAFC 126.
A full list of the revisions will shortly be published on the Summary of version changes to s93A guidelines webpage.
Revisions to FOI Guidelines – Part 3
The OAIC is also in the process of revising Part 3 of the FOI Guidelines. Part 3 relates to the many aspects of processing and deciding on requests for access, including the formal requirements of an FOI access request, consultation, and the timeframe for notifying a decision. We will publish the revised draft on our Consultations page once complete, and advise of that publication in upcoming ICON alerts.
FOI complaints investigations outcomes table
Under Part VIIB of the FOI Act, the Information Commissioner can investigate an action taken by an agency in the performance of its functions or the exercise of powers under the FOI Act.
On completing an investigation, the Information Commissioner must provide a ‘notice on completion’ to the agency and to the complainant (if there is one) (s 86). The Information Commissioner’s notice on completion must include the investigation results, the investigation recommendations (if any), and the reasons for those results and any recommendations (s 86(2)).
The OAIC has recently updated its table of outcomes and recommendations from FOI complaints investigations.
FOI dashboard
Don’t forget, you can get an insight into the volume and type of FOI requests received by checking out our FOI statistics dashboard. Data for Q2 (October - December 2024) was recently published there.
Self-assessment tool
Have you tried out our self-assessment tool? It is designed to assist agencies in reviewing the effectiveness of your information access systems and overall FOI compliance.
OAIC caseload data
As reported in Information Matters, the OAIC has recently published caseload reports for Q2. The data provides statistical information about the OAIC’s freedom of information regulatory work, including a summary of the OAIC’s FOI, IC review and complaints caseloads, and focus areas for complaints and IC reviews.
Recent Information Commissioner review decisions
Additional recent Information Commissioner review (IC review) decisions can be found on AustLII.
‘AVH’ and Prime Minister of Australia (Freedom of information) [2025] AICmr 72 (16 April 2025)
This decision finds that documents related to the Prime Minister’s attendance at a Taylor Swift concert are not “official documents of a Minister” and are therefore outside the scope of the FOI Act.
‘AUT’ and Department of Home Affairs (Freedom of information) [2025] AICmr 56 (31 March 2025)
‘AUT’ and Department of Home Affairs (No. 2) (Freedom of information) [2025] AICmr 57 (31 March 2025)
These decisions discuss the application of s 47E(c) to the names and signatures of staff members of the Department in documents relating to assessments of the applicant’s requests for Ministerial Intervention under s 351 of the Migration Act 1958 (Cth). It gives weight to the applicant’s submission that disclosure would advance the public interest in government transparency and accountability, but finds that on balance, disclosure would be contrary to the public interest.
‘AUN’ and Tertiary Education Quality and Standards Agency (Freedom of information) [2025] AICmr 51 (21 March 2025)
This decision involves a review of a decision to grant access to documents related to the IC review applicant’s registration and/or accreditation with the respondent. The decision sets aside parts of the decision under review in circumstances where the respondent agreed, and the decision maker was satisfied based on the submissions, that the material was conditionally exempt under s 47G and disclosure would be contrary to the public interest.
