Decision not to continue to undertake an IC review under s 54W(c) of the
Freedom of Information Act 1982
IC review applicant
Waldek Lupinski
Respondent
Attorney-General's Department
Decision date
10 May 2024
OAIC reference number
MR23/01375
Agency reference number
FOI23/500
Decision
1. I refer to the application made by Waldek Lupinski (the applicant) for Information
Commissioner review (IC review) of a deemed access refusal decision made by the Attorney-
General's Department (AGD) under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
2. As a delegate of the Information Commissioner, I am authorised to make decisions under
s 54W(c) of the FOI Act.
3. On 18 April 2024 the AGD made a revised decision under s 55G of the FOI Act, providing the
applicant partial access to documents.
4. The Office of the Australian Information Commissioner (OAIC) has not received a response
from the applicant to our subsequent correspondence to advise whether they wished to
proceed with the IC review. As a delegate of the Information Commissioner, I have decided not
to continue to undertake an IC review under s 54W(c) of the FOI Act. My reasons follow.
Background
5. The key procedural steps in this IC review are set out at
Attachment A.
Discretion not to continue to undertake an IC review
6. Under s 54W(c) of the FOI Act, the Information Commissioner may decide not to undertake a
review, or not to continue to undertake a review, if the IC review applicant fails to comply with
a direction of the Information Commissioner.
link to page 2
7. The Direction as to certain procedures to be fol owed by applicants in Information
Commissioner reviews issued by the Australian Information Commissioner under s 55(2)(e)(i),
provides:
Applicants who are satisfied with the decision and do not wish to proceed with the IC review must
advise the OAIC in writing. Applicants who are not satisfied with the agency or Minister’s decision
must explain why they disagree with the decision and the basis on which they wish to proceed with
the IC review.
1
8. The OAIC has not received a response from the applicant to our subsequent correspondence
to advise whether they wished to proceed with the IC review.
Reasons for decision
9. I am satisfied that the IC review should be finalised under s 54W(c) of the FOI Act as the OAIC
notified the applicant that in the absence of a response from them by 7 May 2024, their IC
review would be finalised by a delegate of the Information Commissioner under s 54W(c) of
the FOI Act.
10. In deciding whether to exercise the discretion not to undertake a review, I have considered:
• The applicant has not provided any indication to the OAIC that they disagree with the
AGD’s revised decision.
• It does not appear that reviewing this matter wil promote the objects of the FOI Act,
particularly noting that access to documents has now been provided to the applicant.
11. As a delegate of the Information Commissioner, I have decided to exercise my discretion to
decide not to continue to undertake an IC review under s 54W(c) of the FOI Act.
12. I confirm that this IC review is now closed. Your review rights are set out below.
1 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews | OAIC ) [1.22] and
[1.33]
13.
14. If either party would like to discuss this matter, please contact us by email at
xxxxx@xxxx.xxx.xx. In al correspondence, please quote MR23/01375.
Yours sincerely,
Hannah Holswilder
Director
Freedom of Information Branch
Office of the Australian Information Commissioner
10 May 2024
ATTACHMENT A
Key procedural steps
Date
Events
30 August
FOI request made to the respondent for access
2023
14 November IC review application received by the OAIC
2023
27 November IC review commenced by OAIC
2023
18 April 2024 Revised decision made by respondent to provide partial access to
documents
23 April 2024 The OAIC sought the applicant’s advice about whether the applicant
wished to proceed with the IC review and provide grounds about the
basis on which the applicant wished to proceed. The OAIC also
advised the applicant that their IC review may be finalised under
s 54W(c) if no response was received by the specified date.
link to page 5
Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a
decision of the Information Commissioner if you think that a decision by the Information
Commissioner not to review or not to continue to undertake review of this IC review application
under the Freedom of Information Act 1982 (the FOI Act) is not legal y correct. You can make this
application under the Administrative Decisions (Judicial Review) Act 1977.
The Court wil not review the merits of your case but it may refer the matter back to the
Information Commissioner for further consideration if it finds the decision was wrong in law or the
Information Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC sending the
decision or determination to you. You may wish to seek legal advice as the process can involve
fees and costs. Please contact the Federal Court registry in your state or territory for more
information, or visit the Federal Court website a
t http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint to the
Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The
Ombudsman can investigate complaints about the administrative actions of Australian
Government agencies to see if you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the
OAIC reconsider or change its action or decision or take any other action that the Ombudsman
considers is appropriate. You can contact the Ombudsman's office for more information on 1300
362 072 or visit the Commonwealth Ombudsman’s website a
t http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on th
e Access our information2 page on our
website.
2 www.oaic.gov.au/about-us/access-our-information/.
Document Outline
