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FOI review process

If you do not agree with the decision of an agency or minister made under the Freedom of Information Act 1982 (FOI Act), you can:

  • apply for internal review by asking the agency or minister to reconsider their decision, so long as the agency head or minister did not personally make the decision
  • request that the Australian Information Commissioner review the decision. This is called an Information Commissioner review (IC review).

If you have requested an internal review and do not agree with the result you may also apply for IC review.

You must apply for IC review in writing.

IC review form

This form is hosted by the Australian Government on the business.gov.au portal.

If you do not have Adobe Reader, you can download a copy of the form in Microsoft Word (114 KB).

There is no fee for requesting a review.

In most cases you must apply for IC review within 60 days of being notified of the agency or minister’s decision. You must apply within 30 days if you are requesting review of a decision to grant access to documents to another person. You can also ask the Information Commissioner to grant you more time to apply for IC review.

For more information about requesting a review see FOI Fact Sheet 12 — Freedom of Information: your review rights.

What happens to your IC review

The review process is designed to be as informal as possible and is generally conducted by staff of the Office of the Australian Information Commissioner (OAIC). IC review decisions under s 55K of the FOI Act are made by the Information Commissioner. 

Applying for review

Your review application is registered and an early assessment made to ensure it includes all key information to be a valid review. This includes:

  • your contact details
  • the FOI decision letter to be reviewed
  • the reasons why you think the decision is wrong.

Your review application will be acknowledged and the agency or minister whose decision you want reviewed will be notified of your application.

The OAIC may make preliminary inquiries of the parties to help in determining whether to undertake a review. This includes determining if the review decision falls within the Information Commissioner’s jurisdiction or if the Information Commissioner will exercise the discretion not to undertake a review under s 54W of the FOI Act.

The main reason why the Information Commissioner decides not to undertake an IC review, or not to continue to undertake an IC review, under s 54W is that the application is lacking in substance, or to allow review directly by the Administrative Appeals Tribunal (AAT). You will be given an opportunity to respond to an intention to close a matter.

To help resolve applications promptly, the OAIC may use alternative dispute resolution methods or any other appropriate technique. Alternative dispute resolution methods can clarify at an early stage the issues to be resolved or the information to be provided by either party in support of their claims or submissions.

If the review proceeds to a formal decision by the Information Commissioner, the Commissioner will review the information provided by the parties during the previous stages and may make further inquiries prior to making a formal decision under s 55K.

Once a decision is made by a Commissioner the parties to the review are notified and the decision is published on the internet. Decisions can be viewed on AustLII and are listed on the OAIC's IC review decisions webpage.

Further information on the review process undertaken by the Information Commissioner is available in the Guidelines issued under section 93A of the Freedom of Information Act 1982, specifically Part 10 — Review by the Information Commissioner.

Your review rights

AAT appeal rights

If you disagree with a decision made by the Information Commissioner under s 55K or if the Information Commissioner decides under s 54W(b) that it would be in the interests of the administration of the FOI Act for the AAT to consider your matter, you can apply to the Administrative Appeals Tribunal (AAT) for merit review of the FOI decision.

You have 28 days after receiving the s 55K IC review decision or the s 54W(b) decision to apply for AAT review. The AAT will reconsider the agency or minister’s decision, and can make a new decision. The Information Commissioner will not be a party to the proceedings.

A fee is required to apply to the AAT, although it can be waived in some circumstances. More information about the AAT review process and applicable fees is available on the AAT website.

You cannot appeal directly to the AAT for review of a decision made under the FOI Act without first applying for IC review and you cannot apply for AAT review if the Information Commissioner has decided not to undertake or continue a review, except where a decision under s 54W(b) to allow you to go direct to the AAT has been made.

Judicial review

In circumstances where you have no AAT merit review right you can apply to the Federal Court of Australia of the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision not to undertake or not to proceed with your IC review. The Court will not review the merits of your case but it may refer the matter back to the OAIC for further consideration if it finds the decision was wrong in law or the OAIC's powers were not exercised properly.

An application for review must be made to the Court within 28 calendar days of the OAIC sending the decision to you (if sent by post, this means from the day we post the decision to you). You may wish to seek legal advice as the process can involve fees and costs.

Please contact the Federal Court registry in your state or territory for more information, or visit the Federal Court website.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate.

You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman’s website.