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Application for IC review of FOI access refusal decision

Application for IC review of FOI access refusal decision

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This precedent has been authored by Dr Damien J Cremean, Adjunct Professor, University of Queensland.

Introductory note

This precedent is an application for IC review of FOI access refusal decision.

Legislation

Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names.

The Commonwealth Act is the Freedom of Information Act 1982 (Cth) (Cth FOI Act). State and territory Acts are:

• Freedom of Information Act 1989 (ACT);

• Information Act 2002 (NT);

• Government Information (Public Access) Act 2009 (NSW); • Right to Information Act 2009 (Qld);

• Freedom of Information Act 1991 (SA);

• Right to Information Act 2009 (Tas);

• Freedom of Information Act 1982 (Vic); and

• Freedom of Information Act 1992 (WA).

The Commonwealth Act has served as the base model for all of these laws. It has, however, been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). But variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments.

The particular state or territory law in question should be consulted if a state or territory matter is in issue, ie if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

External review: the Information Commissioner and "IC reviewable decisions"

Commonwealth

The Information Commissioner may review an IC reviewable decision which is related to:

• an access refusal decision (see sections 54K(a) and 54L(2) of the Freedom of Information Act 1982 (Cth) (Cth FOI Act)); and

• an access grant decision (see sections 54K(b) and 54M(2)),

including both the original access decision and the internal review decision.

An application for the review of an access refusal decision may be made under the Cth FOI Act regardless of whether the decision was the subject of internal review: section 54L note 1.

If no decision is made on internal review within 30 days, a decision to affirm the original decision (be it either access grant or access refusal) is taken to have been made: sections 54L note 2 and 54M(2) note.

The term "IC review" is defined by the Cth FOI Act as a review of an IC reviewable decision: section 54G. The IC review application may contain particulars of the basis on which the IC review applicant disputes the IC reviewable decision: section 54N(2).

The powers, in general, of the Information Commissioner on IC review are set out in section 55 of the Cth FOI Act. The Information Commissioner must, after undertaking IC review, make a decision in writing affirming, varying or setting aside the IC reviewable decision and if setting it aside make a decision in substitution: section 55K(1).

During an IC review, a party may apply for a hearing to be conducted by the Commissioner: section 55B.

States and territories

Australian Capital Territory: The Freedom of Information Act 1989 (ACT) does not provide for an Information or Freedom of Information Commissioner. Apart from internal review (see paragraph “Internal review” of this chapter) there is provision only for review by the ACT Civil and Administrative Tribunal (ACAT).

Northern Territory: An Information Commissioner is established by the Information Act 2002 (NT) section 85(1). By section 103 of that Act a person aggrieved by a decision of a public sector organisation on an application for review by the organisation may complain to the Commissioner about the decision. Within 90 days of receiving a complaint, the Commissioner must decide whether to accept or reject the complaint and notify the complainant in writing of that decision: section 106(1). The grounds on which the Commissioner may reject a complaint are set out in section 106(3) and (4).

New South Wales: The Government Information (Public Access) Act 2009 (NSW) section 89(1) gives a person aggrieved by a reviewable decision of an agency a right to have that decision reviewed by the Information Commissioner. The decision must first have been the subject of internal review except in certain cases: section 89(2). Application must be made within 40 days after notice of the decision to which the review relates is given: section 90. On a review the Commissioner may make such recommendations to the agency about the decision as may be thought appropriate: section 92(1).

Queensland: The Right to Information Act 2009 (Qld) section 85 provides for external review and enables a person affected by a reviewable decision to apply to have that decision reviewed by the Information Commissioner. Some decisions are not reviewable: see section 86. The application must be made in accordance with section 88. The procedure on external review is in the discretion of the Commissioner: section 95(1)(a). The Commissioner may affirm, vary or set aside the decision: section 110(1).

South Australia: No Freedom of Information Commissioner is provided for in the Freedom of Information Act 1991 (SA). However, external review is available to a relevant review authority (which may be the Ombudsman) under section 39 of that Act.

Tasmania: As with South Australia, no Freedom of Information Commissioner is provided for in the Right to Information Act 2009 (Tas). However, external review does exist under section 44 of that Act to the Ombudsman in the case of the decisions specified in section 43.

Victoria: Victoria does not provide for internal review in the Freedom of Information Act 1982 (Vic) but it does allow application to be made for review to the Freedom of Information Commissioner under section 49A. The application for review must be made within 28 days after the day on which notice is given of the decision: section 49B(1). By section 49L(1) the Commissioner may with the applicant’s agreement refer the matter to the agency in question for reconsideration if it appears reasonably likely a fresh decision is able to be made in a way satisfactory to the applicant.

Western Australia: Under the Freedom of Information Act 1992 (WA) the Information Commissioner is able to receive complaints under section 65. Generally, a complaint may not be lodged unless internal review has been applied for and completed: see section 66(5) and (6). The Commissioner may make a decision confirming, varying or setting aside the decision in question: section 76(2).