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Message from FOI Commissioner Alice Linacre
Hello and welcome to our latest ICON alert.
I am delighted to have picked up the baton from Toni Pirani as the next Freedom of Information Commissioner – fortuitously starting the very week the OAIC marked International Access to Information Day.
If you haven't registered already, please consider joining the OAIC at our first FOI Regulatory Update Webinar of the year, to ensure you are up to date with all the latest FOI news. The team and I, as well as special guest Daniel Flowers from the NDIA are looking forward to seeing you there if you can make it.
I am also excited to share that the OAIC released its report into automated decision-making (ADM) and public reporting under the FOI Act in January. This item has timely recommendations you can follow if your agency uses ADM, ensuring IPS compliance and promoting transparency about how decisions that affect the public are made, thereby increasing trust in government.
FOI Regulatory Update Webinar - Don't forget to register!
The OAIC will hold its first FOI webinar of the year, 10am to 11.30am (AEDT)* on Tuesday 24 February.
You’ll hear from FOI Commissioner Alice Linacre PSM, and Ashleigh McDonald, Executive General Manager of the OAIC's Information Rights Division.
Special guest Daniel Flowers, General Manager of the Reviews & Information Release Division, National Disability Insurance Agency, will be joining us to speak to about continuous improvement in FOI.
After a 5-minute break, our FOI specialists will then present you with a regulatory update on topics such as IC reviews, complaint investigations, and extension of time applications.
If you would like to attend, visit the webinar registration page, then click Register, and provide registration information. You will be required to give personal information to Microsoft Teams, including your name and email address, and agree to Microsoft Teams’ terms and conditions.
Microsoft Teams may share with the OAIC some of your personal information. You can visit the OAIC website to see the OAIC’s Privacy policy.
* Times in various time zones below:
- Sydney, NSW at 10:00 am (AEDT)
- Canberra, ACT at 10:00am (AEDT)
- Hobart, TAS at 10:00am (AEDT)
- Melbourne, VIC at 10:00am (AEDT)
- Brisbane, QLD at 09:00 am (AEST)
- Adelaide, SA at 09:30 am (ACDT)
- Darwin, NT at 08:30 am (ACST)
- Perth, WA at 07:00 am (AWST)
Automated decision-making and public reporting under the Freedom of Information Act
The OAIC’s latest Report, Automated decision-making and public reporting under the Freedom of Information Act, follows a desktop review conducted in October 2025 of the websites of 23 government agencies authorised to use ADM.
The review assessed how agencies disclose their use of ADM as ‘operational information’ required to be published under the Freedom of Information Act 1982 (FOI Act). The Report acknowledges that technology has altered the operating environment of agencies and greater guidance is required to ensure that agencies are well placed to meet their existing obligations.
The Report highlights good practice but also opportunities for improvement for agencies to meet their obligations under the FOI Act to proactively publish information through the IPS. The Report also highlights the positive impact existing IPS obligations have in ensuring that transparency and accountability of actions and decisions are improved in the Australian Public Service under the Commonwealth Integrity Strategy.
Findings from the Commissioner’s review of the 23 agencies include:
- The use of ADM is permitted under legislation for all agencies.
- All agencies publish IPS-related information on their websites.
- 4 agencies (17%) disclosed the use of ADM in decision-making in their IPS.
- 2 agencies (9%) were identified as ‘likely to be using ADM’ via external sources but had not disclosed use in their IPS information.
- Information to confirm whether or not ADM was in use by the remaining 17 agencies (74%) was not able to be identified using external sources or IPS information.
As a result of this Report, the OAIC will update Part 13 – Information Publication Scheme of the FOI guidelines so that ADM is expressly included as an example of ‘operational information’.
The full Report and recommendations are available on the OAIC website.
FOI complaint investigation update
In line with our regulatory priorities, and as outlined in the OAIC’s IAID FOI Regulatory Update 2025 webinar in October, we are focusing our FOI complaint investigations on addressing systematic underperformance relating to:
- compliance with statutory timeframes
- access refusal rates
- disclosure log practices, and
- Information Publication Scheme (IPS) compliance.
To identify systematic underperformance in these areas, and potential candidates for investigation, we monitor data provided by agencies, including the agency’s timeliness compliance rate as published on the FOI statistics dashboard, as well as the volume of deemed access refusal IC review applications and FOI complaints received.
We recently finalised 4 cohort investigations relating to systematic underperformance in relation to compliance with statutory processing periods. Our investigation outcomes, including recommendations made, are published on our website here: Freedom of information investigation outcomes.
Recent IC review decisions
Information Commissioner decisions made under s 55K of the FOI Act are published on AUSTLII. Recent decisions include:
‘AYX’ and National Disability Insurance Agency (Freedom of information) [2025] AICmr 187 (26 November 2025)
Key points: This decision discusses the application of s 37(1)(b) of the FOI Act to documents relating to a report received by the National Disability Insurance Scheme (NDIS) Fraud Reporting and Scams Helpline. The FOI Commissioner accepted that the release of the documents would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the NDIS and found that the documents at issue were exempt in full under s 37(1)(b) of the FOI Act. In coming to that conclusion, the FOI Commissioner considered the decision of the Full Federal Court in Bachelard v Australian Federal Police [2025] FCAFC 5 (3 February 2025), in relation to the application of s 37(1)(b) of the FOI Act and the observations of MacDonald J in relation to the application of s 22 of the FOI Act. The Commissioner also considered the recent rehearing of this decision by the Administrative Review Tribunal, on remittal: Bachelard and Australian Federal Police (Freedom of information) [2025] ARTA 2416 (7 November 2025).
‘AYW’ and Australian Securities and Investments Commission (Freedom of information) [2025] AICmr 186 (26 November 2025)
Key points: This decision mainly discusses the application of s 47E(c) of the FOI Act to names and other identifying information about staff members in circumstances where the agency claims that potential WHS issues support a conclusion that disclosure would, or could reasonably be expected to, have a substantial and adverse effect on the management of personnel. It finds that in circumstances where the agency bears the onus of establishing that its decision is justified (s 55D(1)), the agency has provided insufficient evidence to support a conclusion that the statutory criteria for the application of s 47E(c) is met.
‘AYV’ and Comcare (Freedom of information) [2025] AICmr 185 (20 November 2025)
Key points: This decision discusses the application of s 47F of the FOI Act to a Comcare Inspector’s report and witness statements. It finds that the documents are conditionally exempt under s 47F and disclosure would be contrary to the public interest at this time, except for a name in the Inspector’s report which Comcare has deleted inconsistently.
‘AYU’ and Department of Home Affairs (Freedom of information) [2025] AICmr 184 (18 November 2025)
Key points: This decision discusses the application of s 47E(c) of the FOI Act to witness statements provided in the context of a workplace investigation. It is primarily of interest to the parties in relation to the specific documents sought.
William Rae and Department of Defence (Freedom of information) [2025] AICmr 183 (14 November 2025)
Key points: This decision mainly discusses whether the Department has taken ‘all reasonable steps’ to search for documents relating to a referral to the Australian Federal Police before refusing access to them on the basis that they cannot be found or do not exist. It focuses on the Department’s failure to identify a particular spreadsheet as being within scope of the request. It also highlights that ‘receiving agencies’ for the purposes of s 16 of the FOI Act, should ensure that the documents are either in its possession or that the subject matter is more closely connected with its functions. Failure to do so is inconsistent with the application of s 16 and results in the delay to access to information.
