ICON alert – edition 20

Message from FOI Commissioner Toni Pirani

Welcome to our April ICON alert.

The 2024-25 financial year has been a record year for the OAIC’s completion of IC reviews. Although the exact numbers won’t be settled until the data is all checked, I am pleased to share that we have made significant inroads into our backlog closing over 40% more IC reviews than the previous year. This is despite receiving more than 20% more new matters than in the previous year.

I would like to recognise and thank the team here at the OAIC who have worked so consistently throughout the year to achieve this result. I would also like to recognise and thank everyone in agencies who has contributed to this work through your active engagement in the IC review process.

On 10 June 2025, I enjoyed meeting in person with the FOI Senior Executive Services (SES) Leadership Group, along with my colleagues Ashleigh McDonald, Executive General Manager of Information Rights Division, and Rocelle Ago, General Manager of FOI Case Management. We discussed the IC review procedure directions a year on from when they took effect on 1 July 2024. Our discussion focused on the procedure for sharing submissions, and how agencies may request extensions in response to Information Commissioner requests or notices. We have included some key reminders about the IC review procedure directions under the heading ‘IC review practice update’ below. You can also read about OAIC resources available to support your agency’s compliance with the procedure directions.

Thank you to all who took the time to provide us with your valuable feedback on Part 3 of the FOI Guidelines, which discusses processing and deciding FOI requests. The submission period has now closed, and we have published all submissions on our draft Part 3 consultation webpage. We look forward to reviewing your comments as we work to finalise the Information Commissioner’s update to Part 3.

FOI statistics

FOI statistics due

It is timely to remind agencies and ministers of the requirement to enter FOI statistics on the Information Commissioner’s secure web portal at https://foistats.oaic.gov.au/ (the FOIstats database):

• quarter 4 returns are due by 21 July 2025
• annual returns are due by 31 July 2025.

Detailed guidance on the statistical returns process is set out in our FOIstats guide. If you still have questions after reviewing the guide, please contact us via our Enquiry Form.

Machinery of Government changes

Your agency’s FOI statistics for quarter 4 of 2024–25 may be affected by the Machinery of Government (MoG) changes that took effect from 13 May 2025, as set out in the new Administrative Arrangements Order (AAO).

The OAIC advises agencies that if there has been a change of ministerial or agency responsibility for any FOI requests on hand as of 13 May 2025, this should be reflected in your statistics for quarter 4 and in your annual return. For example, if a function has been transferred as part of a MoG change, an FOI request relating to that function that was previously reported as ‘received’ in your earlier quarterly return should be recorded as ‘transferred’ to the agency now responsible for processing the request. Similarly, any undecided FOI requests transferred to your agency as part of a MoG change should be recorded as ‘received on transfer’ in your quarterly return.

Consistent with the OAIC’s FOIstats guide:

• Agencies that have been abolished must enter their last quarterly and annual returns on the FOIstats database (ie, by 21 July and 31 July, respectively).
• When a new minister is appointed but there has been no accompanying MoG change, no change needs to be made on the FOIstats database. However, if the name of the ministerial office changes (for example, because of additional ministerial responsibilities), this change should be reflected on the FOIstats database.
• If a ministerial office is abolished, the formerly-responsible agency will need to enter the minister’s final quarterly return and complete the annual return (as outlined above in relation to agencies that have been abolished).

If your agency requires a new agency name or ministerial office to be added to the FOIstats database, please contact the OAIC (by submitting an Enquiry form) as soon as possible, to ensure that those details are reflected on the FOIstats database in accordance with the new AAO.

Further information about FOI stats reporting

We understand that agencies may need more information on how to submit their Quarter 4 and annual FOI stats returns.

Look out for our upcoming Special ICON alert in which we will provide more information to help agencies with these returns. In the meantime, please see our FOIstats guide for guidance and, if you still have questions, please contact us via our Enquiry Form.

Revisions to FOI Guidelines

Consultation on Part 3 of the FOI Guidelines, Processing and deciding FOI requests has now closed.

We value all stakeholders’ input to this important information resource. Thank you to the practitioners who have made submissions, which we have published on our website.

2025 FOI webinar series

This year we have held 2 webinars for FOI practitioners: an Extensions of Time webinar (April 2025) and an IC review practice update webinar (May 2025).

The OAIC will continue offering regular webinars this year that provide updates and guidance about our FOI regulatory functions, including extensions of time, IC reviews, FOI complaints and FOI statistical reporting.

We experienced some technical issues with the feedback form provided to attendees of our IC review practice update webinar of May 2025. We would love your feedback on that webinar, and what would interest you for future webinars – please tell us in our new feedback form.

IC review practice update

Focus areas

Since March this year, the OAIC has been publishing information about our focus areas for IC reviews on our website.

In the 2024-25 financial year, one of our major focus areas was IC review applications received 2020 and 2021. We have now finalised all 2020 IC review applications and are finalising the remaining 2021 applications.

In 2025–26, we expect to move our focus to IC review applications received in 2022 and 2023. If your agency shortly receives a request, or written directions or a notice in respect of a 2022 IC review, please note that the applicant would have recently confirmed their wish to proceed.

We will update our caseload reports and focus areas web page in the coming months to show the full financial year’s statistics.

Procedure Direction

It’s been almost a year since the Information Commissioner gave updated written directions under s 55(2)(e)(i) about the procedure to be followed in relation to IC reviews:

• IC review procedure direction for agencies and ministers (1 July 2024)
• IC review procedure direction for applicants (1 July 2024).

To assist your continued compliance with these practice directions, please note the following key features of the directions for agencies and ministers:

• Information that the Information Commissioner typically requests or requires, in conducting an IC review, is set out in the direction
• Submissions must be sent to the Information Commissioner and the applicant at the same time (para 3.23)
• Extensions to the Information Commissioner’s deadlines during an IC review will only be granted in extenuating or exceptional circumstances (paras 2.10 and 3.25).

Please provide the OAIC updated details regarding relevant contacts for written directions and notices (ordinarily at the Senior Executive Service (SES) Band 1 level or above) via foidr@oaic.gov.au with ‘Update to contact for written directions and notices during IC reviews’ in the subject field. In the email, please advise of the contact person’s given name and family name, as well as their email address and telephone number.

Extensions of time

Agencies and ministers do not need to make extensive submissions when requesting an extension to comply with the Information Commissioner’s deadline during an IC review.

Agencies and ministers should give the Information Commissioner a brief explanation as to why they cannot comply with her deadline, propose a new deadline, and explain how they can comply with that proposed new deadline.

If an agency or minister does not comply with a deadline and no extension is granted, the Information Commissioner may progress the IC review, including by decision under s 55K of the FOI Act, without giving the agency or minister an opportunity to provide further information.

Further resources for agencies and ministers

Our webpage Information Commissioner reviews contains hyperlinks to the IC review procedure directions, and resources for agencies and ministers, including:

• Quick guide to use of directions and information gathering powers, which explains how the Information Commissioner uses relevant powers during IC reviews, including a handy summary table at Annexure A
• Submissions checklist – Making submissions following notification of an IC review application (agency or minister), which provides information about what should be included in submissions responding to an IC review application.

Information Commissioner review decisions

Information Commissioner decisions made under s 55K of the FOI Act are published on AUSTLII. Recent decisions include:

‘AWY’ and Australian Criminal Intelligence Commission (Freedom of information) [2025] AICmr 110 (13 June 2025)

Key points: This decision discusses the application of ss 37(2)(b), 47E(d) and 47B(b) to documents related to law enforcement. It finds the material is exempt from release except for material which the agency inconsistently deleted from the documents, in circumstances where it is not apparent from the material or the submissions that disclosure would prejudice the effectiveness of particular methods or procedures.

‘AWX’ and Department of Defence (Freedom of information) [2025] AICmr 109 (11 June 2025)

Key Points: This decision discusses the application of ss 42 and 47E(c) of the FOI Act to documents regarding a specified investigation concerning the Australian Defence Force (ADF). It is primarily of interest to the parties in relation to the specific documents sought but provides an example of when legal professional privilege applies to communications with internal legal advisers, including where those legal advisers are ADF members.

Rex Patrick and Department of Defence (Freedom of information) [2025] AICmr 106 (5 June 2025)

Key points: This decision discusses the application of s 47C of the FOI Act to advice and recommendations provided by the Naval Shipbuilding Advisory Board to the Australian Government with respect to various aspects of the National Naval Shipbuilding Program. It considers whether disclosure would be contrary to the public interest, in the context of submissions and evidence in support of frankness and candour claims.

‘AWT’ and Administrative Review Tribunal (Freedom of information) [2025] AICmr 103 (30 May 2025)

Key points: This decision considers the application of s 47C (deliberative matter) to documents concerning the decision-making process of a presiding member of the former Administrative Appeals Tribunal. The IC review discusses the application of s 47C of the FOI Act and relevant parts of the Guidelines to the documents which include draft decisions.