How we handle a freedom of information complaint

When you lodge your freedom of information (FOI) complaint, we’ll let you know in writing that we’ve received it.

We may ask you to confirm the outcome you’re seeking to determine whether your complaint is better considered as an application for an Information Commissioner (IC) review.

We may ask the agency you’re complaining about for information relating to your complaint. This is called making preliminary inquiries. The time we give the agency to respond to our preliminary inquiries depends on the amount of information we’ve asked for.

When the agency sends us their response, we’ll assess it and do one of the following:

• let you know about any relevant information they sent us
• request further information from the agency
• let you know we’re not investigating your complaint, or
• notify you that we will investigate your complaint.

Let you know about any relevant information

After receiving the agency’s response to our preliminary inquiries, we may let you know about any relevant information they’ve sent us which we think may address your concerns. For example, if you wanted to know why an agency took more than 30 days to make a decision on your FOI request, and the agency sends us information we think would address your concerns, then we may let you know about this information.

If you’re happy with what you now know, you can withdraw your complaint.

Let you know we’re not investigating your complaint

If you send us information in support of your complaint, we assess it and either investigate your complaint or the Office of the Australian Information Commissioner (OAIC) will write to you to let you know we’re not investigating your complaint.

Our complaints and investigation functions are set out under the Australian Freedom of Information Act 1982 (FOI Act). Not all complaints proceed to an investigation under the FOI Act. For example, after we have made preliminary inquiries, we may decide not to investigate. The FOI Act sets out circumstances where it may not be appropriate to investigate your complaint. We will provide you with our reasons for our decision not to investigate or to finalise an investigation.

Request further information

If, after receiving the agency’s response and we need more information to assess your complaint, we’ll ask the agency for it. The time we give them to respond to our request depends on the amount of information we’ve asked for.

When the agency sends us their response, we assess it and either:

• let you know we’re not investigating your complaint, or
• notify you that we will investigate your complaint.

Investigate your complaint

If, after assessing your complaint and any information we’ve received from the agency, we decide to investigate your complaint, we let you know, in writing, that we’ve started to investigate your complaint.

We also let the agency know, in writing, that we’re now investigating your complaint and what information we need from them. The time we give them to respond depends on the amount of information we’ve asked for.

When the agency sends us their response, we assess it. If we will need further information to complete our assessment, we’ll ask them for it. Otherwise, their response will allow us to complete our investigation.

Then the Information Commissioner will personally write to the agency to let them know:

• the results of our investigation
• our recommendations, if any, and when they must be done
• the reasons for the results.

The Information Commissioner will also personally write to you to let you know that we’ve completed our investigation and its outcome.

View the summary of our investigation outcomes page.

Why we may not investigate your complaint

We may not investigate your complaint if:

• the matters it raises are best looked at in an Information Commissioner review (for example, where the outcome you are seeking is access to documents)
• it’s not about the actions an agency took under the Freedom of Information Act 1982
• it’s more appropriate for you to complain to another body (such as the agency you’re complaining about)
• the agency you are complaining about has dealt with your complaint or is dealing with your complaint
• it’s lacking in substance, misconceived, not made in good faith, vexatious or frivolous
• the matter you complained about doesn’t involve you (for example, you’ve no direct knowledge or aren’t affected by the matter).

If we don’t investigate your complaint, the OAIC will write to you to let you know and the reasons why.

Review rights

You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a decision of the Information Commissioner if you think that a decision by the Information Commissioner not to investigate, or not to continue to investigate, a complaint under the Freedom of Information Act 1982 (the FOI Act) is not legally correct.  You can make this application under the Administrative Decisions (Judicial Review) Act 1977.

The Court will not review the merits of your case but it may refer the matter back to the Information Commissioner for further consideration if it finds the decision was wrong in law or the Information Commissioner's powers were not exercised properly.

An application for review must be made to the Court within 28 days of receiving the decision. 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 at http://www.fedcourt.gov.au.

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 at http://www.ombudsman.gov.au.