An applicant for access to documents under the Freedom of Information Act 1982 (FOI Act), or an affected third party who is not satisfied with the outcome of an access request, can ask an agency to reconsider its decision through internal review. While it is not mandatory to apply for internal review before Information Commissioner review (IC review) is sought, the Information Commissioner considers that it is usually better to seek internal review first. Internal review enables an agency to take a fresh look at its original decision, and the process can be quicker than external review.
This resource identifies the key principles that decision makers should bear in mind when conducting an internal review. You should refer to the Freedom of Information (FOI) Guidelines for more information: see Part 9 (Internal agency review of decisions).
- Internal review is a merit review process, which means that the review officer does not simply examine the reasons given by the original decision maker, but determines the correct or preferable decision in the circumstances. The review officer can decide all issues raised by an applicant's FOI request and exercise all the powers available to the original decision maker. This could include deciding that access to documents should be granted or that charges on a request should be reduced or waived.
- If the applicant for internal review is the FOI applicant, internal review provides an important opportunity for the applicant and the review officer to clarify the scope and basis of the original decision, to discuss the issues raised by the FOI request and, if appropriate, for the FOI applicant to redefine or narrow the scope of their request.
- An application for internal review must be in writing (including by email) and must generally be made within 30 days of notification of the original decision. An agency may grant an extension. A longer period may apply under s 54B(1)(b) where a decision was made to give access but access was not given to all documents, where a decision purported to give access but access was not actually given, or where the decision was to give access to a qualified person under s 47F(5).
- Internal review is not available:
- if the decision was made by a minister or personally by the principal officer of an agency (ss 54(1), 54A(1))
- if the original decision is a deemed decision, that is, the decision was not notified to the FOI applicant within the required timeframe (s 54E(b))
In these situations, a person can apply for IC review.
- Internal review may be sought by an FOI applicant who disagrees with an access refusal decision or an affected third party who disagrees with an access grant decision (ss 54(2), 54A(2)).
- An affected third party may be an individual, the legal personal representative of a deceased person, an organisation, a State Government or the Australian Government (in the case of documents affecting Norfolk Island intergovernmental relations).
- Foreign governments and international organisations that are consulted under s 15(7) have no right to seek internal review or IC review.
- There are no fees or charges for internal review.
- The review officer must be an agency officer who is appointed as an authorised officer under s 23.
- The review officer should bring a fresh, independent and impartial mind to the review. Where possible the review officer:
- should not have been involved in or consulted in making the original FOI decision
- should be senior to the officer who made the original FOI decision
- The review officer should have access to all the material available to the original decision maker. For example, if the original decision includes a claim that documents are exempt from release, the review officer should examine those documents.
- The review officer may rely upon an earlier agency search that identified and located all relevant documents, and may accept the record of a consultation the agency undertook. However, if the review officer is not satisfied that those earlier searches or consultations were adequate, the review officer may repeat those tasks, partially or in full.
- The review officer may consult other agency staff when undertaking the review, including the original FOI decision maker. However, the review officer must bring an independent mind to the task and not act at the direction of, or defer to, another officer.
- The review officer may consider it appropriate to consult the internal review applicant to seek further information or discuss the issues raised by the application.
- There is no obligation to undertake further consultation with any affected third party. The review officer should nevertheless consider whether consultation is needed if none was undertaken or if an earlier consultation did not address issues that arise in the internal review.
- There is no mechanism in the FOI Act for an agency and an applicant to agree to extend the time for deciding an internal review application. There is also no extension where the review officer needs to consult an affected third party.
- The review officer must advise the applicant of their decision within 30 days of receiving the internal review application (ss 54C(3), 54D).
- If a decision is not made within the required time, the principal officer of the agency is taken to have made a decision personally affirming the original decision (s 54D(2)).
- An agency can apply to the Information Commissioner for an extension of time if the internal review decision period has expired (s 54D(3)). The Information Commissioner can allow further time as considered appropriate and may impose conditions (ss 54D(4), (5)).
Notice of decision
- The notice of the internal review decision must comply with the requirements of s 26 (s 54C(4)). For guidance on writing statements of reasons, see Statement of Reasons Checklist, Sample FOI Notices and FOI Guidelines Part 3 (Processing and deciding on requests for access).
Providing access to documents
- The review officer must not grant the FOI applicant access to relevant documents until an affected third party's further review opportunities have run out. See the FOI Guidelines Part 3 (Processing and deciding on requests for access) for details.