Marked up master bundle Redacted Part10.pdf

FOIREQ24/00397   586

Our references: XXXXXX
Your reference: XXXXXXX
XXXXX
Department XXXXX

By email:
Also sent to:
Freedom of information recommendation case under s 88 of the FOI
Act – XXXXXXX
Dear XXXXX
I refer to a complaint by XXXXX, about the XXXXXX (the agency) under the Freedom of
Information Act 1982 (the FOI Act) (OAIC reference number: XXXXX)

Information regarding notice of completion
XXXXXXXXX
I confirm this matter is now finalised.
Please contact me on (02) 9246 0436 or via email at xxxxx@xxxx.xxx.xx if you would
like to discuss this matter.
Yours sincerely
XXXXXXXX
Commissioner
Freedom of Information Commissioner

[XX XX XXXX]
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

FOIREQ24/00397 590
you have raised in your complaint. This is because your complaint does not meet the
requirements of s 70 of the FOI Act.
For this reason, no further action will be taken in respect of your complaint you
submitted to the OAIC on [insert date].
If you have any questions about this matter, please email xxxxx@xxxx.xxx.xx.
Yours sincerely

[complaint’s officer name]
[title]
Freedom of Information
[date]
2

FOIREQ24/00397 608
Our reference: CPXX/XXXXX

Mr/Mrs/Ms First Last
By email: XXXXX

Your Complaint about the Department of XXXXXX

Dear Mr/Mrs/Ms Last,

I refer to your complaint received by the Office of the Australian Information Commissioner (OAIC)
on XX XXXXX XXXX.

We understand that you are seeking to make an FOI request for [personal] information held by the
Department of XXXXX.

An FOI complaint can only be made to the Australian Information Commissioner in respect to an
action taken by a Commonwealth government agency in the performance of functions, or the
exercise of powers, under s 70 of the Commonwealth Freedom of Information Act 1982
(Commonwealth FOI Act).

The OAIC does not hold records of other government agencies. If you wish to apply for access to
documents held by a State or Territory Government agency (including police records), then you
need to make a request in writing, under the FOI Act, directly to the agency that holds the records.
Further information about making an FOI application, including details of what needs to be
included, is available on our website in the published here: How to make a freedom of information
request | OAIC.

If you wish to obtain documents from the Department of XXXXX under the FOI Act, you can email
your request to [insert agency email address or webform]. More information about this process
can be found here: [if possible, attach agency’s webpage about making FOI requests]

FOIREQ24/00397 609

As your complaint has not been made in respect to the performance of functions by a
Commonwealth government agency under the Commonwealth FOI Act, your complaint cannot be
considered by the Information Commissioner.

We have now finalised your complaint as invalid pursuant to s 70(1) of the Commonwealth FOI Act,
as it is outside of the Commissioner’s jurisdiction.

Your application is now closed.

Review Rights

If you are unhappy with the way we have handled this matter, you may complain to the
Commonwealth Ombudsman. This service is free, and you can contact the office on 1300 362 072
or visit www.ombudsman.gov.au.

Kind regards,

FOIREQ24/00397 610
Our reference: CPXX/XXXXX

Mr/Mrs/Ms First Last
By email:

FOI Complaint about XXXXX

Dear Mr/Mrs/Ms Last,

I refer to your FOI complaint received by the Office of the Australian Information Commissioner
(OAIC) on XX XXXXXX XXXX.

We understand that you are seeking to make a complaint about XXXXX in relation to a request you
made under the Freedom of Information Act 1982 (FOI Act).

An FOI complaint can only be made to the Australian Information Commissioner in respect to an
action taken by a Commonwealth government agency in the performance of functions, or the
exercise of powers, under s 70 of the Commonwealth FOI Act.

XXXXX is not a Commonwealth agency for the purposes of the FOI Act and does not fall within the
jurisdiction of the OAIC’s regulatory powers.

As your complaint has not been made in respect to the performance of functions by a
Commonwealth government agency under the Commonwealth FOI Act, your complaint cannot be
considered by the Information Commissioner.

Accordingly, we have finalised your complaint as invalid pursuant to s 70(1) of the Commonwealth
FOI Act, as it is outside of the Commissioner’s jurisdiction.

FOIREQ24/00397 611

REFER C ONTO CORRECT REGULATOR [e.g. However, noting that you still have not received a
response to your request, you may be able to seek external review through the NSW Information
and Privacy Commission or the NSW Civil and Administrative Tribunal (NCAT). More information
about these processes can be found here:

NSW Information Commissioner - How to lodge an application for a review of a government
information access decision (nsw.gov.au)
NSW Civil and Administrative Tribunal (NCAT) - Access to government information (nsw.gov.au)]

Please note, this complaint is now closed. If you would like to contact us to discuss this further,
please quote the reference CPXX/XXXXX in any correspondence.

Review Rights

If you are unhappy with the way we have handled this matter, you may complain to the
Commonwealth Ombudsman. This service is free, and you can contact the office on 1300 362 072
or visit www.ombudsman.gov.au.

Kind regards,

FOIREQ24/00397 612
I note in your application you have stated:

s 22

I refer you to the following website: Fact Sheet - How to make a complaint about us (nsw.gov.au),
which outlines the process for making a complaint about the NSW Information and Privacy
Commission, particularly:

“If you are dissatisfied with the handling of your complaint by the IPC, you can contact the
NSW Ombudsman, which has responsibility for dealing with complaints about conduct that is
il egal, unreasonable, unjust, oppressive, discriminatory, based on improper or irrelevant
grounds, based on a mistake of law or fact, or otherwise wrong.”

FOIREQ24/00397 613
Our reference: N/A
Agency reference: N/A

Applicant
Email to:<address>

Your FOI Complaint about the <Agency> (the Agency/Department)

Dear Mr/Mrs XXsurnameXX,

We acknowledge receipt of your FOI complaint about the [Agency].
Please note:
•  Once your application has been assessed, you will be advised by an investigations and
review officer about the next steps in our complaints handling process.
•  If your circumstances change, or your request has been resolved, please advise us by email
as soon as practicable.
•  Information about the way we handle your personal information is available in our privacy
policy.
Please note that the OAIC’s preference is to receive complaints through our online smartform, as
this allows a complaint to be automatically registered and acknowledged, which in turn allows us
to progress complaints more quickly. Please note that future complaints that are made by email
will take longer to acknowledge and progress as they require manual registration.

Should you wish to follow up on this matter, please contact the OAIC by email at
xxxxx@xxxx.xxx.xx.
Yours sincerely,
[signature block]

FOIREQ24/00397 614
From:
AGO,Rocelle
To:
OAIC FOI Branch Directors
Subject:
Complaints Closure letters - s 73 - Notification to both parties [SEC=OFFICIAL]
Date:
Thursday, 2 May 2024 12:53:48 PM
Importance:
High
Dear colleagues

In closing matters under s 73, please ensure that the decision letter is sent to both parties at the
time of notification, in one email.

The email can simply state:

Dear parties

Please find attached a decision to decline to investigate a complaint made by [insert
complainant] against the [insert respondent] under s 73 under the Freedom of
Information Act 1982.

Kind regards
Rocelle

FOIREQ24/00397 615
Our reference:
FOI reference:

Applicant Name
By email:
Your FOI complaint about the Office of the Australian
Information Commissioner
Dear Mr/Ms/Mrs XX,
Please find attached a letter in relation to your complaint about the Office of the Australian
Information Commissioner.
I confirm your matter has now been transferred to the Commonwealth Ombudsman. The
Ombudsman wil  contact you regarding this matter when they have assessed your complaint.
If you have any questions regarding this matter, please email xxxxx@xxxx.xxx.xx.
Kind Regards
[Signature Block]

FOIREQ24/00397 616

Our reference:
FOI reference:

47E(d)

Transfer of FOI complaint to Commonwealth Ombudsman
Dear s 47E(d)

Please find attached a letter confirming transfer of a complaint made by XXcomplainant nameXX
about the Office of the Australian Information Commissioner.

Please also find attached:
•  a copy of the FOI complaint
•  a copy of our letter to the complainant advising of our intention to transfer the complaint to
your office and request for a response
•  a copy of our letter to the complainant under s74(3) of the FOI Act advising the complaint
has been transferred to the Commonwealth Ombudsman.
•  [if relevant] a copy of complainant’s response to our intention to transfer the complaint to
your office
Kind Regards
[Signature Block]

FOIREQ24/00397 618
“I require an IC review’ [and provide further information regarding the specific
actions of the Agency that your complaint relates to].
3.  If you do not require an IC review of the [Agency]’s decision [or Agency]’s failure to provide
a decision in time (deemed refusal)], please reply to this email stating:
‘I do not seek IC review’ [and provide further information regarding the specific
actions of the Agency that your complaint relates to].
4.  [If relevant] Please note, as the [Department] made a [deemed refusal] decision on XX XXXX
XXXX, as such the 60 day review period to apply for IC review expired on XX XXXX XXXX.
If you require an IC review, please include a request for an extension of time to
apply for IC review (s 54T of the FOI Act). Please include a brief explanation as to
why you did not seek IC review before XX XXXX XXXX, and whether you were made
aware of your right to seek IC review.

Further Information
Please note, withdrawing your complaint will not negatively affect the IC review process. If you
chose to withdraw your complaint now, and at the end of the IC review process decide you are still
unhappy with the way the agency handled your request, you have the option of lodging a new
complaint. Complaints are not subject to statutory time limitations.

Please note, if we have not received a response from you by XXXXX, XX XXXX XXXX, the
Information Commissioner may decide to finalise your complaint under s 73(b) of the FOI Act and
you will be notified of your review rights.

FOIREQ24/00397 619
When a complaint is more appropriately addressed by Privacy, particularly when access to
documents has been requested from an Agency that are not governed by the FOI Act (APP 12), or
FOI applicant has agreed to processing request for information under the Privacy Act (most
common with DHA):
Our reference: CPXX/XXXXX
Agency reference: XXXXX

First Last Name
Representative’s name and organisation of available
By email:

Your [or of rep - First Last’s] FOI Complaint about XXXXX
Agency/Department

Dear XXXX,

I refer to your FOI complaint received by the Office of the Australian Information Commissioner
(OAIC) on DD MM YYYYY.

We understand that you are seeking to make a complaint about XXXXX Agency/Department in
relation to a request you made under the Freedom of Information Act 1982 (FOI Act).

An FOI complaint can only be made to the Australian Information Commissioner in respect to an
action taken by a Commonwealth government agency in the performance of functions, or the
exercise of powers, under s 70 of the Commonwealth FOI Act.

XXXXX Agency/Department is not a Commonwealth agency for the purposes of the FOI Act and
does not fall within the jurisdiction of the OAIC’s regulatory powers.

As your complaint has not been made in respect to the performance of functions by a
Commonwealth government agency under the Commonwealth FOI Act, your complaint cannot
be considered by the Information Commissioner.

Accordingly, we have finalised your complaint as invalid pursuant to s 70(1) of the
Commonwealth FOI Act, as it is outside of the Commissioner’s jurisdiction.

However, XXXXX Agency/Department appears to be an organisation bound by the Privacy Act
1988 (Cth).

The Australian Privacy Principles (the APPs) contained in the Privacy Act 1988 (Cth) set out the
way many private sector organisations, including health service providers are to handle
personal information.

APP 12 provides individuals with a general right to access the personal information that an
organization holds about them, unless an exception applies.

I confirm, where a request for access to personal information has been made in accordance with
the Privacy Act, an agency must respond to the applicant within 30 days.

FOIREQ24/00397 620

[if info is available - Your request from DD MM YYYY appears to be a request for personal
information in accordance with the Privacy Act, and you therefore have the opportunity to lodge
a Privacy complaint with the OAIC, having not received a response from XXXXX
Agency/Department.

We have forwarded your correspondence onto our Privacy branch for consideration, and a
member of the branch will be in contact with you separately about your complaint.

If you have any questions, please contact our Enquiries line on 1300 363 992.

I confirm this CPXX/XXXXX application is now closed.

Review rights

If you are unhappy with the way we have handled this matter, you may complain to the
Commonwealth Ombudsman. This service is free, and you can contact the office on 1300 362
072 or visit www.ombudsman.gov.au.

Kind regards,
[Signature Block]

Email to Privacy branch (xxxxxxxxxxx@xxxx.xxx.xx)
[Email subject line - Transfer of CPXX/XXXXX to Privacy]

Our reference: CPXX/XXXXX
Agency reference: XXXXX

Dear Enquiries,

We received an FOI Complaint on DD MM YYYY in relation to a request for access to personal
documents held by XXXXX Agency/Department.

XXXXX Agency/Department is not an agency for the purposes of the FOI Act, which means the
access request is not a valid request in accordance with the FOI Act, and we cannot investigate
the complaint.

We have therefore closed this as invalid.

However, XXXXX Agency/Department appears to be an organisation bound by the Privacy Act
1988, and the applicant has made a request for access to personal information which has gone
unanswered for more than 30 days.

We have advised the applicant that this matter has been transferred to the Privacy branch for
consideration.

Attached is all correspondence on file.

FOIREQ24/00397 621

Please let me know if there is anything else we can do.

Kind regards,
[Signature Block]

FOIREQ24/00397 622
1.  RFI/ITD TO A REQUESTING DETAILS

Our reference: XXXXX

XXXXX XXXXX
By email: XXXXX

Request for Information regarding your FOI Complaint

Dear XXXXX,

We have received your FOI complaint dated DD MM YYYY. We have attached a copy of the
form you lodged for your reference.

I understand that you are making a complaint about [enter details of complaint e.g. an FOI
Request that you made which was denied]. However, it is unclear from the application you
submitted which agency your complaint relates to.

We kindly ask that you provide the following information by close of business on DAY, DD
MM YYYY:

1.  Conﬁrm which agency or Department this FOI complaint relates to
2.  Provide a copy of the request you originally made
3.  Provide copies of any correspondence between you and the Department/Agency
regarding your request, and
4.  Provide further reasons as to why you are lodging your Complaint

Section 70(1)of the Freedom of Information Act 1982 (Cth) (‘FOI Act’) provides that a
complaint can be made about an action taken by an agency in the performance of functions,
or the exercise of powers, under the FOI Act.

Additionally, s 70(2)(b) of the FOI Act requires that an FOI complaint must identify the agency
in which the complaint relates to.

As such, if we have not received a response from you by close of business on DAY, DD MM
YYYY, your FOI Complaint will be ﬁnalised as invalid in accordance with s 70 of the FOI Act.

If you have any questions, please do not hesitate to contact us at xxxxx@xxxx.xxx.xx.
Please ensure you include the reference CP24/01801 in all correspondence.

Kind regards,

[if.applicant.has.identiﬁed.they.require.assistance.include.this.at.top.of.email¿.I.note.
from.your.complaint.request.form.that.you.require.assistance.participating.in.the.FOI.
Complaint.process¡.Could.you.please.email.us.at.foidr℗ oaic¡gov¡au.or.call.us.on.7966.
9❷9.❺❺8.to.inform.us.of.how.we.can.provide.you.with.assistance¡].

2.  CLOSURE EMAILS TO A

Our reference: XXXXX

FOIREQ24/00397 623

XXXXX XXXXX
By email: XXXXX

Request for Information regarding your FOI Complaint

Dear XXXXX,

I refer to our correspondence below and note we have not yet received a response.

Section 70(2)(b) of the FOI Act requires that an FOI complaint must identify the agency in
which the complaint relates to.

We have been unable to determine which Agency or Minister your FOI Complaint relates to,
and as such have ﬁnalised your complaint as invalid.

This FOI complaint is now closed.

Please note, once you have identiﬁed the Australian Government Agency or Minister you wish
to make a complaint about, you can lodge a new FOI complaint here: Information
Commissioner Review Application Form.

Review Rights

If you are unhappy with the way we have handled this matter, you may complain to the
Commonwealth Ombudsman. This service is free, and you can contact the office on 1300
362 072 or visit www.ombudsman.gov.au.

Kind regards,

FOIREQ24/00397 625
•  identifying the agency in respect of which the complaint is made
•  whether you have previously complained to the agency about the issue and any
response received
•  your complaint issues (i.e. the function or power exercised by the agency under the
FOI Act)
•  the outcomes you seek from the complaints process, and
•  any documents you wish to provide in support of your complaint.
In the absence of the above requested information, the OAIC is unable to properly understand
the substance of your FOI complaint and the Information Commissioner may decide not to
investigate your FOI complaint under s 73 of the FOI Act.
[Delete if not relevant] The outcome/s you have sought where IC review may be a
better option
Complaints usually focus on how an agency has handled your FOI request or complied with
other obligations under the FOI Act, rather than the decision itself. The Information
Commissioner can only make non-binding recommendations as a result of a complaint which
may address the issues that you have complained about, or suggestions or recommendations
that the agency should implement. Therefore, you will not receive a decision and/or the
documents as the outcome of a complaint.
I would be grateful if you could clarify the outcome you are seeking from the FOI complaints
process. For examples of outcomes and recommendations, please see our website at Freedom
of information investigation outcomes which outlines the types of recommendations the OAIC
has previously made in relation to the investigation of complaints.
Next steps
Information about the FOI complaints process is available on the OAIC website at How we
handle a freedom of information complaint | OAIC.
A response is required by [ 2 weeks].
Please note, your response may be provided to the agency for their consideration.
If you have any questions about this email, I can be contacted via xxxxx@xxxx.xxx.xx.
Kind regards
2

FOIREQ24/00397 627
(iii)
it would have been reasonable for the complainant to exercise that right

2

FOIREQ24/00397 628
3.  whether the complainant made a complaint to the Department directly and, if so:
a.  please provide copies of relevant correspondence with the complainant
regarding the complaint, and
b.  please confirm whether the agency has:
(i)
dealt with, or is dealing with the complaint and any outcome, or
(ii)
not yet had an opportunity to dealt with the complaint.
4.  brief submissions in response to this FOI complaint
5.  submissions addressing any information regarding changes to agency practices and
procedures since the FOI complaint was received, including, information regarding
changes to practices/procedures etc.
Please note that your substantive response may be shared with the complainant.
Next steps
A response is due by [date].
The recent ICON alert 15 March 2024 outlines the OAIC’s approach and expectations for
agencies to meet timeframes when information is requested and any extension of time
requests.
If you have any questions about this email, I can be contacted via xxxxx@xxxx.xxx.xx.
Yours sincerely,
[Signature block]

3

FOIREQ24/00397 629
OAIC reference:
Agency reference:

Applicant Name
Agency Name

Decision not to investigate a FOI complaint under s 73 of the Freedom of
Information Act 1982

Dear Parties,

Please find attached correspondence about the above referenced FOI complaint to the Oﬀice of
the Australian Information Commissioner (OAIC).

Kind regards,

[Signature]

FOIREQ24/00397 630
Subject: OAIC – CPXX/XXXXX – s 74 complaint transfer consultation
Dear Mr 47E(d)

I write to consult you about the attached complaint the Oﬃce of the Australian Information
Commissioner (OAIC) has registered under s 70 of the FOI Act. The complaint relates to actions the
OAIC has taken in the performance of its functions or exercise of powers under the FOI Act.
Section 69(1) provides that the Information Commissioner must investigate, subject to the Act, a
complaint made under s 70 of the FOI Act.
The power to ﬁnalise a complaint made under s 70 of the FOI Act is a non-delegable function. The
Information Commissioner herself must make a decision on the outcome of an FOI complaint.
Due to the non-delegable power, the Information Commissioner considers it is inappropriate to
investigate this complaint lodged under s 70 of the FOI Act.
In accordance with s 74(2) of the FOI Act, I write to request that the Commonwealth Ombudsman
considers transfer of the FOI complaint pursuant to s 74 of the FOI Act.
Please see attached copy of the FOI complaint and related documents provided by the
complainant.
I seek your response by [1 week] confirming whether the Commonwealth Ombudsman agrees to
the transfer of the complaint. Please find attached a copy of the complaint.
Please let me know if you require any further information.
Kind regards,
[EL2 Signature]

FOIREQ24/00397 631
Subject: OAIC – CPXX/XXXXX – Notice of intention to transfer to the Commonwealth
Ombudsman

Our reference:

Your FOI complaint about the Office of the Australian
Information Commissioner
Notice of intention to transfer to the Commonwealth Ombudsman
Dear [Applicant name],
I refer to your FOI complaint made under s 70 of the Freedom of Information Act 1982 (FOI Act)
about the Office of the Australian Information Commissioner (OAIC) registered by the OAIC on 30
April 2024.
Your complaint
In your FOI complaint you raised the following issues in relation to the OAIC:
•  [Summary of complaint]
Section 69(1) provides that the Information Commissioner must investigate, subject to the Act, a
complaint made under s 70 of the FOI Act.
The power to finalise a complaint made under s 70 of the FOI Act is a non-delegable function. The
Information Commissioner herself must make a decision on the outcome of an FOI complaint.
Due to the non-delegable power, the Information Commissioner is of the view that it would be
inappropriate to investigate an FOI complaint lodged under s 70 of the FOI Act in certain
circumstances, including:
1.  [If Relevant] whether the complaint is about actions taken by the Office of the
Information Commissioner (OAIC), including how the OAIC has dealt with an:
•  Information Commissioner review
•  FOI complaint
•  vexatious applicant declaration application
•  FOI request, or
•  extension of time application

2.  [If Relevant] whether there may be a perceived or actual conflict of interest in the
Commissioner considering the complaint, including where:
•  the complainant has active complaints under the Privacy Act where the
Information Commissioner is the respondent
•  the complaint relates to specific functions exercised by the Information
Commissioner under the Privacy Act

FOIREQ24/00397 632
•  the complainant has active matters in other forums, including the
Administrative Appeals Tribunal and Federal Court and the Information
Commissioner is the respondent.
Discretion to transfer FOI complaints to the Commonwealth Ombudsman
Under s 74 of the FOI Act, the Information Commissioner may decide not to investigate an FOI
complaint and to transfer it to the Ombudsman if the complaint could more effectively or
appropriately be dealt with by the Ombudsman under the Ombudsman Act 1976.
I have reviewed your FOI complaints. It is my intention to recommend that your FOI complaint is
transferred to the Ombudsman under s 74 of the FOI Act on the basis that:
•  The complaint relates to an action of the OAIC
•  It would be a conflict for the OAIC to investigate it’s own actions
The effect of a decision to transfer your FOI complaint to the Ombudsman is that the Information
Commissioner will finalise your complaint pursuant to s 74(3) of the FOI Act. The Ombudsman will
then contact you in relation to your complaint.
Next steps
The delegate of the Information Commissioner will review all material before the OAIC in deciding
whether to exercise the discretion to transfer your FOI complaint to the Ombudsman.
I invite you to provide submissions in response to my intended recommendation to transfer your
FOI complaints to the Ombudsman by [1 week].
If you have any questions regarding this matter please email xxxxx@xxxx.xxx.xx . In all
correspondence please quote [OAIC reference].
Yours sincerely
[EL2 Signature Block]

FOIREQ24/00397 634
Decision to transfer complaint to the Commonwealth Ombudsman
I am a delegate of the Information Commissioner.
Under s 74 of the FOI Act, the Information Commissioner may decide not to
investigate a FOI complaint and to transfer it to the Ombudsman if the complaint
could more effectively or appropriately be dealt with by the Ombudsman under the
Ombudsman Act 1976.
In considering whether to transfer your FOI complaint to the Ombudsman, I have had
regard to the following:
•  your FOI complaint
•  the FOI Act, in particular ss 70 and 74
•  the Guidelines issued by the Information Commissioner under
s 93A of the FOI Act to which agencies must have regard in performing a
function or exercising a power under the FOI Act (FOI Guidelines), in
particular paragraph 11.17.
The issue identified in the complaint matter relates to actions taken by the OAIC. It is
the view of the Information Commissioner that it would be inappropriate to
investigate as the Information Commissioner is the respondent.
The OAIC has consulted the Ombudsman, as required under s 74(2) of the FOI Act.
Following this consultation, I have decided to transfer your complaint to the
Ombudsman under s 74(3) of the FOI Act.
The effect of this decision is to finalise your complaint with the OAIC. The file held by
this office is now closed. The Ombudsman will contact you regarding this matter
when they have assessed your complaint.
If you have any questions regarding this matter, please email xxxxx@xxxx.xxx.xx.
In all correspondence, please quote the reference number at the top of this letter.
Yours sincerely

Hannah Holswilder
Director
Intake and Early Resolution Team
Freedom of Information Branch
Office of the Australian Information Commissioner

2

FOIREQ24/00397 635
21 August 2024

3

FOIREQ24/00397 636
Your 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 legally correct. You can make this application under the Administrative
Decisions (Judicial Review) Act 1977.

The Court will 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 at
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 at 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 the  Access our
information2 page on our website.
4

FOIREQ24/00397 638
In accordance with s 74(3)(b) of the FOI Act, I attach a copy of the complaint and related
documents provided for your consideration.
I have also written to the complainant under s 74(3) of FOI Act to advise them that this
complaint has been transferred. A copy of this correspondence is attached.

2

FOIREQ24/00397 639
If you would like to discuss this matter, please contact me via email at xxxxx@xxxx.xxx.xx.
Please quote the reference number at the top of this letter in all correspondence.
Yours sincerely

Hannah Holswilder
Director
Intake and Early Resolution Team
Freedom of Information Branch
Office of the Australian Information Commissioner
21 August 2024

3

FOIREQ24/00397 640
Dear XXXX,
Thank you for your email below.
We have registered an IC review file in response to your request, and it has been allocated the OAIC
reference number MRXX/XXXX.
Noting that the issues raised in your original complaint (CPXX/XXXX) are now being addressed via
the above IC review application, would you kindly respond to this email by close of business on
DD, DD MM YYYY, and advise whether you wish to continue with this FOI complaints.
If you no longer require the FOI complaint, kindly reply to this email and confirm that you wish to
“withdraw” the complaint.
If you wish to continue with the complaint, please provide more detail about why you are
unsatisfied with the Department’s handling of your FOI request.
Please note, under s 73(b) of the FOI Act, the Information Commissioner may decide not to
investigate a complaint if the complainant has, or had, a right to have the action reviewed by the
Information Commissioner under Part VII of the FOI Act and has not exercised that right when it
would be reasonable to do so (s 73(b)).
It is important to note, withdrawing this complaint will not negatively affect the IC review
application. If you chose to withdraw your complaint now, and at the end of the IC review process
decide you are still unhappy with the way the Department handled your request, you have the
option of lodging a new complaint. Complaints are not subject to statutory time limitations.
If we do not hear a response from you by close of business on DD, DD MM YYYY, the OAIC may
finalise this FOI complaint under s 73(b) of the FOI Act.
Please note, the IC reviews (MRXX/XXXXX) will continue to progress.
If you have any questions, please do not hesitate to contact me at xxxxx@xxxx.xxx.xx.
Kind regards,

FOIREQ24/00397 641
April 2024
FOI Complaint recommendation cases:
Overview of process
This resource applies to managing FOI Complaint Recommendation Cases and should be read in
conjunction with Part 11 of the FOI Guidelines, the Regulatory Action Policy and FOI Complaints:
Overview of investigation process resource.
Key principles
• The Information Commissioner can investigate under Part VIIB of the FOI Act agency actions
relating to the handling of FOI matters. This involves investigating complaints received from
complainants (s 70) as well as conducting own motion investigations (s 69(2)).
• The complaints process set out in Part VIIB is primarily intended to deal with the manner in
which agencies handle FOI requests and procedural compliance matters.
• The FOI Act sets out certain rules that apply to the conduct of the Information Commissioner’s
complaint investigations and Commissioner initiated investigations. The guiding principle is
that an investigation shall be conducted in private and in the way the Information
Commissioner considers fit (s 76(1)).
• On completing an investigation, the Information Commissioner must provide a ‘notice on
completion’ to the agency and to the complainant (if there is one) (s 86).
• The Information Commissioner’s notice must include the investigation results, the
investigation recommendations (if any), and the reasons for those results and any
recommendations (s 86(2)).
• In addition to including opinions, conclusions or suggestions in a notice on completion, the
Information Commissioner may also make ‘formal recommendations to the respondent
agency that the Information Commissioner believes that the agency ought to implement’ (s
88).
• If the Information Commissioner is not satisfied that the agency has taken adequate and
appropriate action to implement a formal recommendation, the Information Commissioner
may issue a written ‘implementation notice’ requiring the agency to provide within a specified
time particulars of any action the agency will take to implement the Information
Commissioner’s recommendations (s 89).

FOIREQ24/00397 646
to recommend to the delegate of the Information Commissioner that this
application for IC review be finalised under s 54W(b) of the FOI Act on the basis
that it is in the interests of the administration of the FOI Act that the IC
reviewable decision be considered by the AAT.
6. «InvestigativeOfficerFirstname» «InvestigativeOfficerSurname» invited the
parties to provide reasons if they disagreed with the proposed finalisation of this
IC review by [date].
7. [if relevant] Based on the information before me, the OAIC has not received a
response.
8. OR [insert details of response or that no response was received]
Discretion not to [undertake/continue to undertake] an IC review
9. Under s 54W(b) of the FOI Act, the Information Commissioner may decide not to
undertake a review, or not to continue to undertake a review, if the Information
Commissioner is satisfied that the interests of the administration of the FOI Act
make it desirable that the IC reviewable decision be considered by the AAT.
10. The effect of such a decision would be to finalise this IC review application and
allow the applicant to apply directly to the AAT. The applicant would then have
28 days to lodge an application with the AAT in accordance with ordinary AAT
processes. AAT filing fees may apply.1
11. The discretion in s 54W(b) of the FOI Act may be exercised where the Information
Commissioner is satisfied that the interests of the administration of the FOI Act
make it desirable that the IC reviewable decision be considered directly by the
AAT, rather than initially by the Information Commissioner.
12. The Explanatory Memorandum to the Freedom of Information Amendment
(Reform) Bill 2009 which created s 54W(b) states:
One of the reasons for retaining a right of review to the AAT is that, as an experienced review
body, the AAT can properly deal with highly contested applications. This provision enables
the Information Commissioner to decline to undertake a review if satisfied it would be more
appropriate and efficient for the application to be made directly to the AAT.
1 https://www.aat.gov.au/apply-for-a-review/freedom-of-information-foi/fees
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FOIREQ24/00397 647
13. This is also referred to in the Guidelines issued by the Australian Information
Commissioner under s 93A (FOI Guidelines) at [10.88] – [10.89], which state:
The Information Commissioner can decline to undertake a review if satisfied ‘that the
interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the
review application (s 54W(b)). It is intended that the Commissioner will resolve most
applications. Circumstances in which the Commissioner may decide that it is desirable for the
AAT to consider a matter instead of the Commissioner continuing with the IC review include:
•  where the IC review is linked to ongoing proceedings before the AAT or a court
•  where there is an apparent inconsistency between earlier IC review decisions and AAT
decisions
•  where, should the application progress to an IC review decision, the IC review decision is
likely to be taken on appeal to the AAT on a disputed issue of fact
•  where the FOI request under review is of a level of complexity that would be more
appropriately handled through the procedures of the AAT
•  where there may be a perceived or actual conflict of interest in the Commissioner
undertaking review, including where:
o  the FOI request under review was made to, or decided by, the
Information Commissioner or their delegate
o  the FOI request or material at issue relate to specific functions exercised
by the Information Commissioner under the Privacy Act
o  the applicant has active matters in other forums, including the AAT or
Federal Court and the Information Commissioner is the respondent
•  where consideration by the AAT would further the objects of the FOI Act, particularly in
relation to the performance and exercise of functions and powers given by the FOI Act to
facilitate and promote public access to information, promptly and at the lowest
reasonable cost (s 3(4)).
The OAIC wil  consult the parties involved in a matter before making a decision under
s 54W(b) to conclude an IC review.
14. The circumstances in which the Information Commissioner may consider it
desirable that the AAT consider the IC review application, as outlined in the FOI
Guidelines above, are not exhaustive. There will be circumstances that are not
listed where the Information Commissioner may deem it desirable to refer the
matter to the AAT.
15. The objects of the FOI Act provide that functions and powers under the FOI Act
are to be performed and exercised, as far as possible, to facilitate and promote
public access to information, promptly and at the lowest reasonable cost.
16. Further, in accordance with these objects, paragraph [10.18] of the FOI
Guidelines provides that IC reviews are intended to be a simple, practical and
cost-efficient method of external merits review.

3

FOIREQ24/00397 648
Reasons for decision
17. [If relevant, set out parties’ submissions here and include consideration of these
submissions]
18. I have considered the issues in this matter and I am satisfied that it is in the
interests of the administration of the FOI Act that the IC reviewable decision be
considered by the AAT because:
• [review and update as appropriate]
• the IC review is linked to ongoing proceedings in the AAT or a court
• there is an apparent inconsistency between earlier IC review decisions and
AAT decisions
• the exemptions applied to the documents under s [x] of the FOI Act in this
IC review are highly contested and there are a number of affected third
parties who must be given a reasonable opportunity to present their case
before a final decision is made (s 55(4)(b))
• the IC review decision is likely to be taken on appeal to the AAT on a
disputed issue of fact
• the FOI request under review is complex or voluminous, resolving the IC
review matter would require a substantial allocation of OAIC resources,
and the matter could more appropriately be handled through the
procedures of the AAT
• the OAIC is the primary decision-maker of the decision under review
• the material at issue relates to specific functions exercised by the
Commissioner under the Privacy Act.
[Sample reasons]
• It is linked to ongoing proceedings currently before the Administrative
Appeals Tribunal. It is clear from the applicant’s submissions in this IC review
that the applicant is seeking access to information about [provide details of
proceedings].
• The FOI request under review is complex and voluminous and resolving this
matter would require substantial allocation of OAIC resources. For example,
the scope of this IC review extends to various exemptions including ss 22, 24A,
33, 42 and 47F of the FOI Act and requires consideration of 200 documents at
issue.
4

FOIREQ24/00397 649
• The exemption of s 33 of the FOI Act adds complexity to this matter because
before the Information Commissioner can determine that a document is not
an exempt document under s 33 of the FOI Act, she must first request the
Inspector-General of Intel igence to appear and give evidence on the
damage that would, or could reasonably be expected to be caused to the
security or the Commonwealth, the defence of the Commonwealth or the
international relations of the Commonwealth if access to the document were
given in accordance with the request (s 55ZB of the FOI Act), and
• Further, in circumstances where there is a distinct possibility that, should the
IC review continue, any IC review decision will be taken on appeal by either
party to the AAT, I consider that it is desirable for the efficient administration
of the FOI Act that the IC reviewable decision is reviewed by the AAT at first
instance. I also consider that such an approach is consistent with the objects
of the FOI Act.
19. In deciding whether to exercise the discretion not to [undertake / continue to
undertake] a review, I have considered:
• [review and update as appropriate]
• The Explanatory Memorandum to the Freedom of Information Amendment
(Reform) Bill 2009 which created s 54W(b) states: One of the reasons for
retaining a right of review to the AAT is that, as an experienced review
body, the AAT can properly deal with highly contested applications. This
provision enables the Information Commissioner to decline to undertake a
review if satisfied it would be more appropriate and efficient for the
application to be made directly to the AAT.
• The objects of the FOI Act provide that functions and powers under the FOI
Act are to be performed and exercised, as far as possible, to facilitate and
promote public access to information, promptly and at the lowest
reasonable cost.
• In accordance with the objects of the FOI Act, paragraph [10.18] of the FOI
Guidelines provides that IC reviews are intended to be a simple, practical
and cost efficient method of external merit review.
• [Where the OAIC is the primary decision maker] The perceived conflict of
interest in the Information Commissioner reviewing a decision made by
their own agency.
20. For these reasons, as a delegate of the Information Commissioner, I have
decided to exercise my discretion to decide not to [undertake / continue to
5

FOIREQ24/00397 650
undertake] an IC review under s 54W(b) of the FOI Act. I confirm that this IC
review is now closed.
Next steps
21. The applicant now has 28 calendar days from the date of this notice to make an
application for review of the IC reviewable decision to the AAT in accordance
with s 57A of the FOI Act.
22. If either party disagrees with my decision under s 54W(b) of the FOI Act,
information about your review rights is set out below.
Yours sincerely
[Director Name]
[Director]
Freedom of information Branch
4 September 2024
6