Review of Agency Decisions: Office of the Information Commissioner

If you disagree with a decision made by an agency about your access application or an access application where you are a third party, you have the right to apply to the agency for an internal review. 

If the initial decision was made by the principal officer of the agency or a Minister, internal review is not available (section 39(3)). In that case, you can apply directly to the Information Commissioner for external review of the agency’s decision (see below). 

An internal review must be conducted by an officer of the agency who is not subordinate to the person who made the initial decision (section 41). 

You can apply for internal review when (section 39(2)): 

• The agency refuses to deal with your access application. 

• You have been refused access to some or all of the requested documents. 

• You have only been given access to an edited document and you want access to the parts that were deleted. 

• The agency has deferred giving you access. 

• The agency has decided that medical or psychiatric information about you will only be given to you through a nominated medical practitioner. 

• The agency has decided to impose a charge or require a deposit that you consider unreasonable. 

• As a third party whose personal or business information is in documents requested by someone else, you were not consulted or you disagree with a decision to release the documents (whether consulted or not). 

You must apply for internal review in writing within 30 days after being given the agency’s notice of decision. (The principal officer of the agency may allow you to lodge your application after the 30 days has elapsed (section 40(3)). 

Within 15 days (or any longer period that you agree to), the agency is required to give you its internal review notice of decision. It also needs to tell you that if you are dissatisfied with the decision you have a right to apply to the Information Commissioner for an external review of the agency’s decision. 

After internal review, if you still disagree with the agency’s decision, you may lodge a complaint with the Information Commissioner seeking external review of the agency’s decision. A complaint is also referred to as an application for external review. The decisions that you can apply for external review of are set out in (section 65(1)). 

The Commissioner is independent of executive government and reports directly to Parliament. A complaint to the Information Commissioner must: 

• be in writing and include an Australian address; 

• give particulars of the decision to be reviewed including details of the part(s) of the decision you want the Commissioner to review; and 

• include a copy of the internal review notice of decision sent to you by the agency. If you have not received the agency’s internal review decision, attach a copy of the initial notice of decision. If the initial decision was made by the agency’s principal officer or a Minister, include a copy of the initial notice of decision (as there is no avenue for internal review) 

If you are the access applicant, you must apply for external review within 60 days after being given the agency's decision. 

If you are a third party who objects to disclosure of your information, you must apply for external review within 30 days after being given the agency's decision. 

In exceptional circumstances, the Commissioner may allow a complaint to be lodged after these periods have elapsed (section 66). 

An agency may tell you that it cannot give you the documents that you want because they can’t be found or don’t exist. 

Section 26 of the FOI Act allows an agency to come to this conclusion after taking all reasonable steps to find the documents. 

If an agency decides to refuse you access on that basis, it is required to give you a written decision that should explain the steps taken to find the documents and the reasons why the agency is satisfied that a document can’t be found or does not exist. This may include reasons why the document never existed, information about the destruction of the document according to appropriate polices, or details of the searches conducted to find the document. 

If you believe that a document exists and the agency has not conducted a reasonable search to find it, you can seek review of the agency’s decision. 

TIP: Agencies are not required to create a document to satisfy an access application, where no such document already exists. 

TIP: Agencies don’t have to keep every document – there are specific rules about which documents must be retained, how long they must be retained and when they can be destroyed. These are set out in the State Records Act 2000 and in government agencies’ retention and disposal schedules approved by the State Records Commission. 

When a valid access application is made to an agency, the agency must deal with it in the manner described in section 13 of the FOI Act. The only exception is that an agency can refuse to deal with your access application if it would divert a substantial and unreasonable portion of its resources away from the agency’s other operations. However, before it makes a decision to refuse to deal with your application, the agency is required to take reasonable steps to help you reduce the amount of work to deal with the application. 

The agency may ask you for more information to help it understand what you are seeking and then suggest relevant categories of documents or files described by subject or name. It may ask you to narrow what you are seeking – the scope of your application – to particular dates or a particular incident, or to exclude certain information from the scope of your application. 

If an agency decides to refuse to deal with your access application, it must give you a written decision that should summarise the scope of the access application, the steps it took to help you reduce the scope and how dealing with your application would require an unreasonable diversion of its resources. 

You have a right to seek review of a decision to refuse to deal with your application. 

TIP: It is in an applicant’s interest to cooperate when an agency seeks to reduce the work involved in dealing with an application. If an applicant does not cooperate, the agency may be justified in refusing to deal with the application. Reducing the work involved would also reduce any charges that an agency may impose for dealing with an application. 

• Application for External Review (PDF)
• Consulting with third parties during external review - guide for agencies (PDF)
• Decisions of the Information Commissioner – guide for access applicants (PDF)
• Decisions of the Information Commissioner – guide for agencies (PDF)
• Decisions of the Information Commissioner – guide for third parties (PDF)
• Documents that cannot be found or do not exist – guide for access applicants (PDF)
• Exchange of submissions and procedural fairness - guide for parties (PDF)
• External Review Procedure - guide for parties (PDF)
• Preparing for a conciliation conference - guide for parties (PDF)
• Producing documents to the Information Commissioner – guide for agencies (PDF)
• Understanding the conciliation process - guide for parties (PDF)