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Direction as to certain procedures to be followed in IC reviews

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This direction is given under section 55(2)(e)(i) of the Freedom of Information Act 1982.

1. About this Direction

1.1 This Direction is given by the Australian Information Commissioner under s 55(2)(e)(i) of the Freedom of Information Act 1982 (the FOI Act) in relation to Information Commissioner (IC) reviews generally.

1.2 The purpose of this Direction is to set out the particular procedures that agencies and ministers are required to follow during IC reviews in respect of the production of documents, the provision of a statement of reasons where access has been deemed to be refused and the provision of submissions.

1.3 This Direction does not apply to the extent it is inconsistent with a provision of the FOI Act, another enactment or a specific direction made in a particular IC review.

1.4 This Direction is not a legislative instrument.[1]

1.5 This Direction has effect from 26 February 2018.

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2. General principles

2.1 The IC review procedures are found in Part VII of the FOI Act. The process is intended to be an informal, non-adversarial and timely means of seeking external merits review of decisions by agencies and ministers on FOI requests. Part 10 of the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act, to which agencies must have regard in performing a function or exercising a power under the FOI Act, sets out in detail the process and underlying principles of IC review.

2.2 Before commencing an IC review, the Information Commissioner will notify the relevant agency or minister that an applicant has applied for IC review of the agency’s or minister’s decision (s 54Z notice of IC review).

2.3 Section 55(2)(a) of the FOI Act authorises the Information Commissioner to conduct an IC review in whatever way the Information Commissioner considers appropriate. Section 55(2)(d) of the FOI Act allows the Information Commissioner to obtain any information from any person and to make any inquiries that the Information Commissioner considers appropriate.

2.4 In general IC reviews will be conducted on the papers unless there are unusual circumstances to warrant a hearing.[2] Therefore, full and timely production of documents at issue, submissions and any other information that has been requested is important.

2.5 Under s 55DA of the FOI Act, agencies and ministers must use their best endeavours to assist the Information Commissioner in the conduct of IC reviews. Under s 55D(1) of the FOI Act, agencies and ministers have the onus of establishing that a decision refusing access is justified or that the Information Commissioner should give a decision that is adverse to the IC review applicant in an IC review of an access refusal decision.

2.6 Section 55Z of the FOI Act provides immunity to a person from civil proceedings and penalties if the person gives information, produces a document or answers a question in good faith for the purposes of an IC review.

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3. General procedure for production and inspection of documents

Production of documents

3.1 The Information Commissioner has various powers to require the production of information and documents under the FOI Act, which are outlined in the Annexure to this Direction. In addition to the Information Commissioner’s information gathering powers under Division 8 of the FOI Act, the Information Commissioner is able to obtain any information from any person, and to make any inquiries, that are considered to be appropriate under s 55(2)(d) of the FOI Act. Therefore, when the Information Commissioner commences an IC review by issuing a notice of IC review, the Information Commissioner will also request relevant information and documents to progress the IC review.

3.2 Document production requirements may vary from case to case depending on the issues being considered (application of exemptions, searches, charges or practical refusal).[3] In relation to IC reviews involving the application of exemptions under the FOI Act, the Information Commissioner will generally require the agency or minister to provide a marked up and unredacted copy of the documents at issue in electronic format, documents setting out relevant consultations and submissions to support their exemption contentions.[4]

3.3 In providing the Information Commissioner a marked up copy of relevant documents, agencies and ministers must ensure that all redactions pursuant to an exemption, or deletions on the basis of relevance pursuant to s 22(1)(a)(ii) of the FOI Act, are clearly marked with reference to the relevant provision of the FOI Act that the redactions or deletions are being made under.

3.4 Inspection of documents at issue by the Information Commissioner in response to a request for production will only be considered in very limited situations where the agency or minister can demonstrate that extenuating circumstances exist to warrant inspection rather than the direct production of copies of the marked up documents. See below at [3.9] – [3.13] for further direction on inspections.

3.5 In IC reviews where an agency or minister claims that documents cannot be located or do not exist, the Information Commissioner will require the agency or minister to provide evidence of the searches that have been undertaken to locate relevant documents.[5]

3.6 In IC reviews involving a charge or a practical refusal reason, the Information Commissioner may require the agency or minister to provide a sufficiently representative sample of documents considered to be within the scope of the request.[6]

3.7 Agencies and ministers will have three weeks to respond to the Information Commissioner’s request for documents, submissions and any other information in the notice of IC review. Agencies and ministers must provide a response within this timeframe, unless an extension of time has been sought and granted. If an agency or minister requires an extension of time to respond to a notice of IC review, the agency or minister must make a request in writing to the Information Commissioner with supporting evidence of the need for the extension prior to the due date.

3.8 Where an agency or minister fails to provide information and documents within the initial or extended timeframe, or requests another extension, the Information Commissioner may proceed to require the provision of information and the production of documents pursuant to s 55R of the FOI Act (discussed in the Annexure to this Direction).

Inspection of documents

3.9 The inspection of documents by the Information Commissioner will only be considered where the agency or minister satisfies the Information Commissioner that there are extenuating circumstances to warrant production by this method.

3.10 What constitutes extenuating circumstances is not prescriptive and will be determined on a case by case basis. The onus is on the requesting agency or minister to justify that extenuating circumstances exist to warrant inspection.

3.11 If an agency or minister is of the view that there are extenuating circumstances to justify inspection, the Information Commissioner requires the agency or minister to provide a written request for an inspection together with supporting reasons prior to the due date in the notice of IC review.

3.12 The Information Commissioner considers that inspection will not be warranted where the documents at issue are subject to conditional exemptions. The Information Commissioner considers that inspection may be appropriate in some circumstances where the documents at issue are subject to a national security, Cabinet or Parliamentary Budget Office exemption claim (ss 33, 34 and 45A of the FOI Act). However, the requesting agency or minister must satisfy the Information Commissioner that there are extenuating circumstances to warrant inspection.[7]

3.13 If the Information Commissioner agrees to an agency or minister’s request for inspection, the agency or minister will be required to undertake all necessary arrangements to facilitate the inspection. Unless otherwise agreed this will occur at the Information Commissioner’s office.

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4. General procedure in relation to deemed refusals

4.1 Where an application for IC review is made on an FOI request that is deemed to have been refused under ss 15AC(3), 51DA(2) or 54D(2) of the FOI Act, the Information Commissioner will undertake preliminary inquiries pursuant to s 54V of the FOI Act. In undertaking preliminary inquiries, the Information Commissioner will require the agency or minister to provide an explanation regarding the status of the FOI request and, if the request is not finalised, an estimated date for a decision on the request.

4.2 Agencies and ministers will have one week to respond to the Information Commissioner’s preliminary inquiries.

4.3 If no response is received in that time or it appears that there may be further unreasonable delay in the processing of the FOI request, the Information Commissioner will commence IC review and require the agency or minister to provide a statement of reasons pursuant to s 55E of the FOI Act. The agency or minister will be required to provide the statement of reasons within the timeframe specified in the notice.[8]

4.4 The Information Commissioner may, as appropriate, issue a notice pursuant to s 55E of the FOI Act together with a Notice to Produce under s 55R of the FOI Act to ensure that the statement of reasons is accompanied by relevant documents.

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5. General procedure in relation to submissions made during an IC review

5.1 All parties to an IC review will be provided with a reasonable opportunity to present their case on the IC review through written submissions.

5.2 The Information Commissioner will share an agency’s or minister’s submissions with the applicant unless there are compelling reasons not to.[9]

5.3 If an agency or minister wishes to make a submission in confidence, a request for the submission to be treated in confidence must be made ahead of providing the submission. Any request for confidentiality must be accompanied by reasons to support such a claim, including whether the submission would reveal the contents of the documents at issue.

5.4 Where the Information Commissioner accepts a submission in confidence, agencies and ministers must provide a version of the submission that can be shared with the applicant.[10]

5.5 Where the Information Commissioner makes a decision on IC review pursuant to s 55K of the FOI Act, the Information Commissioner will quote or summarise an agency or minister’s non-confidential submissions in the published decision. If a confidential submission is relied on by the Information Commissioner in making a decision on the IC review, this will be noted in the decision without revealing the confidential material.

5.6 In providing submissions, agencies and ministers should be mindful of their obligation to assist the Information Commissioner pursuant to s 55DA of the FOI Act and their onus under s 55D of the FOI Act. As it may be appropriate for an IC review to proceed to a decision under s 55K of the FOI Act on the basis of a response to a notice of IC review, it is in agencies’ and ministers’ interests to put forward all relevant contentions and supporting reasons in response to the notice of review.[11]

5.7 The Information Commissioner may seek further submissions from an agency or minister as appropriate. However, agencies and ministers should be aware that if they do not make submissions when an opportunity to do so has been provided, the matter may proceed to a decision under s 55K of the FOI Act without any further opportunity to make submissions. It is not open to agencies and ministers to reserve their right to make submissions at a later date.

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6. Non-compliance with this Direction

6.1 In the event of non-compliance with this Direction, the Information Commissioner may proceed to make a decision under s 55K of the FOI Act on the basis that the agency or minister has failed to discharge their onus under s 55D of the FOI Act.

6.2 In addition, as the model litgant obligation under the Legal Services Directions 2017 extends to Commonwealth entities involved in merits review proceedings, failure to adhere to the requirements of this Direction may amount to non-compliance with the model litigant obligation.[12]

 

Timothy Pilgrim PSM
Australian Information Commissioner

30 January 2018

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Annexure: Information gathering and document production powers

1. Notice to Produce

1.1 Pursuant to section 55R(3) of the FOI Act, the Information Commissioner may issue a written Notice to Produce to require an agency or minister to give information or produce documents of a kind specified in the Notice to Produce. A Notice to Produce may also be issued in conjunction with either sections 55T or 55U of the FOI Act (discussed below).

1.2 The Information Commissioner will allow at least two weeks for agencies and ministers to respond to a Notice to Produce. It is an offence to fail to comply with a Notice to Produce issued by the Information Commissioner.

2. Production of exempt documents generally

2.1 Section 55T of the FOI Act concerns the production of exempt documents generally. This section applies when an agency or a minister claims that a document is an exempt document and the document is not covered by section 55U of the FOI Act (discussed below).

2.2 Section 55T(2) of the FOI Act provides that, for the purposes of deciding that a document is an exempt document, the Information Commissioner may require the document to be produced. In addition, section 55T(4) of the FOI Act provides that the Information Commissioner may require the production of an exempt document for the purpose of determining whether it is practicable for an agency or a minister to give access to an edited copy of the document.

3. Production of particular exempt documents

3.1 Section 55U of the FOI Act concerns the production of documents subject to a national security, Cabinet or Parliamentary Budget Office exemption claim (sections 33, 34 or 45A the FOI Act).

3.2 Section 55U(3) of the FOI Act provides that, if the Information Commissioner is not satisfied by evidence on affidavit or otherwise that a document is an exempt document under sections 33, 34 or 45A of the FOI Act, the Information Commissioner may require the document to be produced for examination.

3.3 If, after examining the documents, the Information Commissioner is still not satisfied that the documents are exempt under section 33 of the FOI Act, pursuant to section 55ZB of the FOI Act, the Information Commissioner will request the Inspector-General of Intelligence and Security to appear and give evidence on the damage that would or could reasonably be expected to result from the release of the documents.[13]

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Footnotes

[1] Section 55(3) of the FOI Act.

[2] See Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines) at [10.20] and [10.63].

[3] See FOI Guidelines at [10.100].

[4] See FOI Guidelines at [10.102].

[5] See FOI Guidelines at [10.100].

[6] See FOI Guidelines at [3.121] and the IC review decisions in Adrian Wright and Department of Human Services (Freedom of information) [2017] AICmr 127 and Cash World Gold Buyers Pty Ltd and Australian Taxation Office (Freedom of information) [2017] AICmr 20.

[7] The OAIC is able to receive secure electronic transmission of documents. For more information contact the OAIC.

[8] See FOI Guidelines at [10.61] – [10.62].

[9] See FOI Guidelines at [10.104].

[10] See FOI Guidelines at [10.104].

[11] See FOI Guidelines at [10.74].

[12] See paragraph 3 of Appendix B to the Legal Services Directions 2017.

[13] The Information Commissioner has a Memorandum of Understanding with the Inspector-General of Intelligence and Security to facilitate the Information Commissioner’s information gathering powers.

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