The Australian Information Commissioner can issue guidelines under s 93A of the Freedom of Information Act 1982 (FOI Act). Agencies and ministers must have regard to these Guidelines when performing functions or exercising powers under the FOI Act.
Part 10 of the FOI Guidelines (Review by the Information Commissioner) describes the principles that inform the OAIC’s approach to Information Commissioner review (IC review). These principles include that the review is:
- a merit review process
Part 10 also outlines the procedures the OAIC will follow when undertaking an IC review. These include advice on:
- who can apply for IC review
- making an application for IC review
- withdrawing an application
- time limits to apply for IC review
- joining other parties
- using alternative dispute resolution
- obtaining information, including the Information Commissioner’s powers to gather information
- revising decisions during the IC review
- the Information Commissioner’s options including preliminary inquiries and deciding not to undertake a review
Further, under section 55(2)(e)(i) of the FOI Act the Information Commissioner can give a written direction as to the procedure to be followed in relation to IC reviews. A direction given under this section is not a legislative instrument.
On 26 February 2018, the Information Commissioner issued a ‘Direction as to certain procedures to be followed in IC reviews’. This Direction applies to agencies and ministers during IC reviews and during preliminary inquiries undertaken before the commencement of an IC review. The Direction sets out the procedures agencies and ministers must follow in respect of producing documents, providing a statement of reasons where access has been deemed to be been refused and providing submissions.
This Direction supplements Part 10 of the FOI Guidelines.
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