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Application for internal review of FOI access refusal decision

Application for internal 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 internal 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.

Internal review

Usually there will be provision for internal review of an adverse decision. Full advantage should be taken of this, if available.

Commonwealth

A party who is dissatisfied with a decision may, in certain circumstances, apply for internal review of it under section 54 of the Cth FOI Act. Application is made for internal review of:

• an "access refusal decision" under section 54(2) (other than one made by an agency's principal officer or the responsible Minister as provided in section 54(1)); and

• an "access grant decision" under section 54A (again other than one made personally by the agency's principal officer or responsible Minister).

The primary meaning of an access refusal decision is a decision refusing to give access to a document in accordance with a request: see section 53A (in particular section 53A(a)). The meaning of an access grant decision is set out in section 53B of the Cth FOI Act, which specifies decisions in a table which covers documents that may be conditionally exempt or exempt as the case may be.

Time for seeking internal review: Specified periods are set by section 54B within which a request to review a decision must be made. However, an agency may decide to allow a further period for making an application whether or not the time for making the application has already expired: section 54B(2).

Where internal review is not granted: Reasons must be given in the event of a refusal to grant an internal review. The notice of refusal must state the findings on any material questions of fact and must refer to the material on which those findings are based. See sections 26(1) and 54C(4).

Where internal review is granted: An agency must arrange for a person (other than the original decision maker) to review a decision within 30 days after an application for review is received: subsections 54C(2) and (3).

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.

States and territories

Australian Capital Territory: Internal review is provided for in section 59 of the Freedom of Information Act 1989 (ACT).Thus, by section 59(1)(a), a decision refusing or deferring access is reviewable. See also section 59(1)(b) and (c). Application must be made within 28 days of notification of the decision. A fresh decision must be made upon a review: section 59(2). Reasons for a decision on review must be given: section 59(4).

Northern Territory: A person aggrieved by a decision of a public sector organisation may apply for review of that decision under section 38(1) of the Information Act 2002 (NT). The application must comply with section 38(2). The application should be made within 30 days of the decision: section 39(2). The review must be conducted fairly and with as much expedition as a proper consideration of the matter permits: section 39(3). The outcome of the review must be notified within 30 days after the application is made: section 39(1).

New South Wales: A right of internal review of an agency’s decision is given by section 82(1) of the Government Information (Public Access) Act 2009 (NSW) to a person aggrieved. Application must be made no more than 20 working days after notification the decision is given: section 83(1). An application out of time, however, may be accepted: section 83(2). The review is undertaken by the making of a new decision: section 84(1). The review decision must be made within 15 working days of receipt of the application: section 86(1). This period, however, can be extended: see section 86(2) and (4).

Queensland: A person affected by a renewable decision may apply to have that decision reviewed by an agency or the Minister dealing with the application under section 80(1) of the Right to Information Act 2009 (Qld). The review must be sought within 20 business days of the date of the written notice of the decision: section 82(c). An internal review must be decided as soon as practicable: section 83(1). Certain decisions are not reviewable: see section 81. South Australia: Under section 38(1) of the Freedom of Information Act 1991 (SA) a person aggrieved by a determination of an agency is entitled to have it reviewed. The application must be lodged at an office of the agency within 30 days after the date of notice of the determination or within any further period that may be allowed by the principal officer of the agency: section 38(2)(d). On an application for review the determination under review may be confirmed, varied or reversed: section 38(3).

Tasmania: Internal review is provided for in section 43 of the Right to Information Act 2009 (Tas). Generally, review must be sought within 20 working days after notice of the decision: section 43(1). But see section 43(2) and (3). In reviewing the decision, a fresh decision must be made: section 43(4)(a).

Victoria: Internal review as such is not available under the Freedom of Information Act 1982 (Vic) but power is given by section 6C(1)(b) of that Act to the Freedom of Information Commissioner to conduct reviews of decisions by agencies upon request. An application to the Commissioner must be made within 28 days after the date on which notice of the decision is given. The Commissioner must conduct a review in a timely, efficient and fair manner with as little formality and technicality as possible: section 49H(1). The Act also allows complaints to be made (section 61A(1)) in respect of various matters including: a decision by an agency a document does not exist or cannot be located; delay by a Minister in dealing with a request; and action taken by a Minister (or not taken) deferring access. The complaint must be made within 60 days after the action or conduct complained of: section 61A(4). Thereafter, inquiries may be made and the matter investigated (section 61G(1)) and a process of conciliation may follow (section 61H).

Western Australia: A person aggrieved by a decision of an agency is given a right of review by section 39 of the Freedom of Information Act 1992 (WA).

The application for review must be lodged within 30 days after written notice of the decision: section 40(2). In some cases this may be extended: see section 40(3).

The decision under review may be confirmed, varied or reversed: section 43(1).