MR24 00901 Notice of IC Review.pdf

Our reference: MR24/00901
Agency reference: LEX954
The respondent is:
The applicant is:
Australian Public Service Commission
B Z
By email: xxx@xxxx.xxx.xx
By email: foi+request-11239-
xxxxxxxx@xxxxxxxxxxx.xxx.xx

Notice of IC review application and request for documents
The Office of the Australian Information Commissioner (OAIC) has received an application for
Information Commissioner review of a decision made by the Australian Public Service
Commission (the respondent) under the Freedom of Information Act 1982 (the FOI Act). A
copy of the IC review application and the decision under review are attached.
The OAIC will commence a review of the FOI decision and provides this notice under s 54Z of
the FOI Act.
Scope of IC review
The IC Review applicant contests the respondent’s reasons for refusing access as set out in
the decision under review.
Requirement for parties to engage and share submissions
As part of this process:
•  the OAIC requires respondents and applicants to engage with each other to
attempt to resolve or narrow the issues in dispute. The respondent should initiate
this process
•  the respondent has until 1 October 2024 to complete the engagement and share its
submission with the OAIC and the applicant
•  the respondent also has until 1 October 2024 to provide the OAIC with the
information set out in Table A of the Directions as to certain procedures to be
followed by agencies and ministers in IC reviews
•  the applicant has 10 business days after receiving the respondent’s submission to
share their submission with the OAIC and the respondent.
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937

Annexure A has more information for applicants about the engagement process and sharing
submissions. Annexure B has more information for respondents about the engagement
process and sharing submissions.
Request for information from respondent
Table A of the Directions as to certain procedures to be followed by agencies and ministers in
IC reviews sets out the information the respondent must provide to the OAIC. Please provide
the information outlined in Table A that relates to this review.
Respondents can comply with this notice by delivering the response to xxxxx@xxxx.xxx.xx by
1 October 2024.
Obligations during the IC review process
The obligations of the respondent during the IC review process are set out under:
•  ss 55D, 55DA and 55Z of the FOI Act
•  Part 10 the Guidelines issued under s 93A of the FOI Act, which agencies and
ministers must have regard to when performing a function or exercising a power
under the FOI Act
•  Direction as to certain procedures to be followed by agencies and ministers in IC
reviews issued under s 55(2)(e)(i) of the FOI Act.
The obligations of the applicant during the IC review process are set out under:
•  Part 10 the Guidelines issued under s 93A of the FOI Act
•  Direction as to certain procedures to be followed by applicants in Information
Commissioner reviews issued under s 55(2)(e)(i) of the FOI Act.
Yours sincerely,
Ellie O’Kearney
Intake and Early Resolution Team
Freedom of Information Branch
Office of the Australian Information Commissioner
[Enclosed: IC review application and decision under review].
20 August 2024
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Annexure A: Further information for applicants
The procedure that applicants are to follow in IC reviews is set out in Direction as to certain
procedures to be followed by applicants in Information Commissioner reviews. The below
summarises the obligations of applicants to engage with respondents and provide
submissions to both the OAIC and respondents.
Obligation for you to engage
The respondent must initiate engagement with you and make reasonable attempts to
engage.1 The engagement aims to resolve or narrow the issues in dispute in the IC review.
Engagement could involve a phone call or video conference between you and the
respondent. You can tell the respondent if they would prefer to engage another way.2
The respondent must demonstrate to the OAIC what they have done to engage with you to
resolve or narrow the issues in dispute in the IC review. If the respondent does not take
sufficient actions to engage with you, the OAIC will direct them to engage further.3
If you fail to participate in the engagement process (without reasonable excuse), the
OAIC may decide to not continue the IC review. This will be on the ground you have
failed to cooperate in progressing the IC review without reasonable excuse.4 The
OAIC will warn you if we are considering this possibility and give you the opportunity to
respond.
We expect that you and the respondent will engage in the IC review process with
respect and courtesy.5
Sharing submissions between you and the respondent
If respondents make a submission in support of their FOI decision, they must send their
submission to you at the same time as sending them to the OAIC. You can then make a
submission in response. You will have 10 business days to make a submission about why you

1 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.17]

2 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.19]

3 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.20]

4 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.21]

5 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.23]
3

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disagree with the respondent, and you are required to send your submission to the
respondent at the same time as sending to the OAIC.6
When it sends its submission to you and the OAIC, the respondent should remind you that
you then have 10 business days to make your submission.
The OAIC will generally proceed with making an IC review decision on the basis of the
evidence respondents provide in response to this notice, and any submissions the parties
make. If you do not make submissions when an opportunity to do so has been provided, the
OAIC may make a final decision without giving any further opportunity to make
submissions.7
You can ask the OAIC to make a submission in confidence. Your request must give reasons
why you want to make a confidential submission and the OAIC will consider those reasons
and decide whether to accept the submission on a confidential basis. If the OAIC agrees to
treat a submission confidentially, you will generally be required to provide a second version
of the submission which can be shared.8

6 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.27]

7 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.28]

8 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.30]
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Annexure B: Further information for respondents
The procedure that respondents are to follow in IC reviews is set out in Direction as to certain
procedures to be followed by agencies and ministers in IC reviews. The below summarises
the obligations of respondents to engage with applicants and provide submissions to both
the OAIC and applicants.
Obligation for respondents to engage
Respondents are required to engage make reasonable attempts to engage with applicants.9
The engagement should aim to resolve or narrow the issues in dispute in the IC review.
Engagement may comprise a phone call or video conference between the respondent
and the applicant. The OAIC will not be involved in arranging or attending these.10
Applicants can tell respondents if they would prefer to engage another way.11
Respondents must prove the OAIC with information to demonstrate the actions they have
taken to engage the applicant to resolve or narrow the issues in dispute in the IC review.12
The IC has published a checklist to assist agencies and ministers provide relevant
information relating to the agency or minister’s engagement with the applicant during the IC
review: see IC Review Practice Documents.
The OAIC will advise the respondent if they consider the respondent should undertake
further engagement with the applicant during the IC review.13
If applicants fail to participate in the engagement process (without reasonable excuse),
the OAIC may decide to not continue their IC reviews.14
We expect that applicants and respondents will engage in the IC review process with
respect and courtesy.15

9 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.8]

10 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3. 9]

11 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.10]

12 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.11]

13 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.13]

14 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.21]

15 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.23]
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Sharing submissions between the respondent and applicant
If respondents make submissions in support of their FOI decisions, they must send their
submissions to applicants at the same time as sending them to the OAIC.16 Respondents
should include prominent reminders in covering correspondence that applicants will have
10 business days from the date of receiving the correspondence to make submissions.
Applicants will be required to send their submissions to respondents at the same time as
they are sent to the IC.17
Respondents should be aware that if they do not make submissions when an opportunity to
do so has been provided, reviews may proceed to a decision under s 55K of the FOI Act
without any further opportunity to make submissions. Respondents should not expect the
opportunity for further submissions. Any request for extensions of time should only be made
where exceptional circumstances can be demonstrated. This is because extensions of time
will only be granted in exceptional circumstances.18
The OAIC will not accept submissions in confidence without a prior request. Any request for
confidentiality must be accompanied by reasons to support such a claim, including whether
the submission would reveal the contents of the documents at issue. Where the OAIC accepts
a submission in confidence, respondents must provide an open version of the submission to
the IC review applicant.19

16 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.23]

17 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.23]

18 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.24-5]

19 Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.26-7]
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