ICON alert – edition 23

Message from FOI Commissioner Alice Linacre

Hello and welcome to our latest ICON alert.

With over 400 individuals from 68 different government organisations in attendance, our first Regulatory Update webinar of the year was our most successful yet.

Thank you for the enthusiasm you've demonstrated for improving and strengthening this vital system which provides access to information to people, as well as the insightful questions raised on the day.

While we weren't able to cover all your questions during the session, our team has provided additional answers below which I hope will help to guide you in your invaluable work.

News this month includes updates to the OAIC's FOI Guidelines, a reminder on procedures for vexatious applicant declarations as well as important contact information if you need to reach out to our office for assistance in relation to FOI matters.

I'm also excited to share some of the insights I've learned from almost six months in the FOI Commissioner's chair, which you can now read about at our OAIC website.

Inside that item, My first six months as FOI commissioner: Building trust and promoting good administration, I discuss my priorities as FOI Commissioner and the impending launch of the OAIC's new disclosure log hub, in addition to my views of what it is to administer the FOI Act well!

Lastly, and if you haven't done so already, please take the time to fill out our short and anonymous feedback survey for the February webinar. Your insights will help us to ensure that future events can be impactful and relevant to your needs as FOI practitioners.

Updates to FOI Guidelines

Updates have been made to multiple Parts of the FOI Guidelines to reflect the creation of the Administrative Review Tribunal (ART) in October 2024, to update legislative references and to refresh links to internal and external resources.

Parts 1, 2, 3, 4, 6, 7, 10, 11, 12 and 15 have all been updated.

In addition to the changes listed above, Part 1 has been updated to provide guidance to agencies in situations where the ART or Federal Court has made decisions that change the interpretation of provisions in the FOI Act, but the FOI Guidelines have not yet been updated (see [1.3]).

Part 10 has been updated make it clear that if, during an IC review, an agency or minister no longer maintains that a practical refusal reason exists under s 24, the Information Commissioner may decide to make a s 55K decision (rather than the respondent making a new decision under s 55G). See [10.77] and footnote 50 to [10.129].

Next steps

Agencies and Ministers’ offices should familiarise themselves with the updates.

All template letters and notices should be reviewed and updated to reflect the reflect the amended Guidelines.

Changes made to the Guidelines are listed on the Summary of version changes to the FOI Guidelines page of the OAIC’s website.

FOI Regulatory Update webinars

Thank you to those who attended our first FOI Regulatory Update Webinar of 2026, held on 24 February 2026. The FOI Commissioner, Alice Linacre PSM, appreciated the opportunity to make opening remarks, in which she detailed the OAIC’s current Commissioner Priorities for FOI:

• promote Open Government to better serve the Australian community
• increase our FOI regulatory and case management effectiveness
• uplift agency capability in the exercise of FOI functions
• make FOI compliance easier

We were most grateful to special guest Daniel Flowers, General Manager Review & Information Release Division, National Disability Insurance Agency (NDIA) for his engaging presentation, ‘NDIA’s FOI Practice Build Journey 2025–26’.

Speakers from the OAIC’s FOI Case Management Branch covered FOI regulatory updates on extension of time (EOT) applications, complaint investigations, Information Commissioner reviews (IC reviews), and vexatious applicant declarations.

We've listened to your questions at the webinar and your feedback so far, and are planning further webinars for 2026 that are dedicated to topics such as disclosure of public servants’ names, EOT applications, vexatious applicant declarations, and IC review practice updates.

We'll advertise those webinars in upcoming ICON alerts. In the meantime, we've put a spotlight on some of the questions from February’s webinar in the below article.

If you haven’t already given feedback on the FOI Regulatory Update Webinar, there’s still time! We'd love your feedback via our short and anonymous feedback form.

Spotlight: Your questions answered from February's webinar

Several questions from February’s webinar related to the case management system LEX, Artificial Intelligence (AI), and transfers of FOI requests under s 16 of the FOI Act. We've put together some information on these topics here:

FOI case management and reporting systems

Mr Flowers of NDIA described NDIA’s recent transition from managing FOI requests on an Excel Database to an ICT platform, ‘LEX’.

In that light, agencies may wish to reflect on our report on the Freedom of Information Practitioners’ Survey 2024 (published 13 January 2025).

That report describes the results of our online survey, conducted 15 July to 13 August 2024, of primary FOI contact officers of Australian Government agencies in relation to their FOI practices, training and guidance, and future needs.

The survey revealed that at that time, 63% of agencies reported using an Excel spreadsheet or other static record to manage and report on FOI requests, while 26% reported using a case management system (most commonly LEX, Microsoft Dynamics and SharePoint).

Case management systems were more commonly used by larger agencies and agencies with a high number of FOI requests.

Agencies may also wish to visit our FOI self-assessment tool to help understand the effectiveness of their information access systems and identify areas for attention.

Artificial Intelligence (AI) and FOI

In October 2025, the Information Commissioner issued an updated version of Part 3 of the FOI Guidelines – Processing and deciding FOI requests, including guidelines on how Artificial Intelligence (AI) interacts with FOI.

The updated Part 3 explains that AI brings with it the potential for FOI requests to be made without human intervention.

Part 3 explains that a ‘bot-generated’ FOI request – a request that was made without human intervention – will not be valid under the FOI Act.

That’s because the ‘right of access’ to government-held information in s 11 of the FOI Act is given to ‘every person’, including a ‘body politic or corporate (s 2C of the Acts Interpretation Act 1901).

Without a person or corporate entity making an FOI request (even if assisted by AI), there is no right of access under the FOI Act.

Part 3 also explains that to reduce the possibility of bot-generated FOI requests, agencies’ online FOI request forms may include technology that can identify whether the form’s user is a robot.

However, the FOI Act does not require any particular form to be completed to make a valid request, or for people to identify themselves.

Part 3 accepts that a person may use AI to assist them to make an FOI request.

In related news, the Australian Government launched the whole-of-government AI Plan for the Australian Public Service 2025 (APS AI Plan) on 12 November 2025. That plan sets out how the APS will harness artificial intelligence (AI) to deliver better services faster, for all Australians. We are currently considering how that plan affects the FOI landscape and will keep you updated.

For Information Awareness Week, FOI Commissioner Alice Linacre also spoke at the National Archives of Australia, which included discussion relating specifically to AI and also automated decision-making (ADM). Read the speech online at the OAIC website.

Transferring FOI requests to other agencies

Section 16 provides for the transfer of FOI requests between agencies, and between agencies and ministers.

Transferring an FOI request to another agency (‘the receiving agency’) under s 16 ensures that the FOI applicant does not need to make a new FOI request to that agency.

An agency (‘the transferring agency’) could transfer an FOI request for a document to another agency (‘the receiving agency’) under s 16(1), which requires that:

• the document is not in the possession of the transferring agency, but is to their knowledge in the possession of the receiving agency, or
• the document is in their possession but the subject-matter of the document is more closely connected with the functions of the receiving agency, and
• the receiving agency agrees to accept the transfer of the FOI request.

The decision William Rae and Department of Defence (Freedom of information) AICmr 183 (14 November 2025), highlights that a ‘receiving agency’ should ensure that the documents to which the FOI request relates are either in its possession or that the subject matter is more closely connected with its functions prior to accepting a transfer of an FOI request from another agency under s 16 of the FOI Act.

The transferring agency must advise the FOI applicant that their FOI request has been transferred (s 16(4)). If the document is in the possession of the transferring agency, the transferring agency should also send a copy of the relevant document to the receiving agency if that is necessary to enable the receiving agency to deal with the FOI request (s 16(4)).

See our Sample freedom of information notices including a sample notice to applicant Transfer of request to another agency.

What if the receiving agency does not agree to accept any transfer of the FOI request?

Because the transfer of an FOI request under s 16 affects the obligations of agencies and ministers, consultation between them is essential (see paragraph [3.61] of the FOI Guidelines).

If the receiving agency does not agree to accept the transfer of an FOI request, the requirements in s 16(1) are not met (see the FOI Guidelines at paragraph [3.68]). A decision to transfer an FOI request under s 16 is not open to external review (paragraph [3.62]).

Accordingly, the transferring agency must continue to process the request until its finalisation by way of withdrawal by the applicant, or decision to grant access in full, in part, or refuse access. See FOI Guidelines, Part 3: Processing and deciding on FOI requests.

Vexatious applicant declarations: Making an application

The OAIC has received several applications for vexatious applicant declarations over the past few months and is currently working through these matters.

To assist with the efficient management of these matters and consistent with paragraph [12.38] of the Guidelines, the agency or minister should provide the person with a copy of their application and attachments at the same time as making its application to the OAIC. Similarly, the agency or minister should provide its submissions to that person at the same time as providing them to the OAIC.

This is important to ensure procedural fairness, as well as transparency, efficiency and accountability, in circumstances where a declaration would have the practical effect of preventing that person from exercising an important legal right conferred by the FOI Act.

Recent IC review decisions

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

'AZK' and Department of Health, Disability & Ageing (Freedom of information) [2026] AICmr 3 (21 January 2026)

This decision discusses the application of ss 47, 47C, 47F and 47G of the FOI Act to certain material in a concise chain of emails in 2020 between the Department, the Health Minister’s Office and a third party relating to the development and acquisition of COVID-19 vaccines by and in Australia.

In Bachelard and Australian Federal Police (Freedom of information) [2025] ARTA 2416, Justice Kyrou, the President of the Administrative Review Tribunal, explained that for s 47F to apply to information it must be ‘about’ the individual rather than simply refer to them. Justice Kyrou further stated that information will be ‘about an individual’ if the individual is a subject matter of the information.

The FOI Commissioner was satisfied the names and associated contact details were about the named individuals because they included information about them such as their association with the development and acquisition of COVID-19 vaccines by and in Australia.

‘AZQ’ and Services Australia; (No 1) (Freedom of information) [2026] AICmr 9 (10 February 2026); (No 2) (Freedom of information) [2026] AICmr 10 (10 February 2026); (No 3) (Freedom of information) [2026] AICmr 11 (10 February 2026); (No 4) (Freedom of information) [2026] AICmr 12 (10 February 2026); (No 5) (Freedom of information) [2026] AICmr 13 (10 February 2026)

These decisions discuss the application of Part V of the FOI Act and Part 7 of the Guidelines to the applicant’s requests to amend certain records of Services Australia, in particular whether the information that the applicant seeks to be amended is personal information about the applicant.