FOIREQ24/00508 0983
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June 2023
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 wel 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 shal 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 wil take to implement the Information
Commissioner’s recommendations (s 89).
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Appendix A: D2023/002296
Review Case Plan – Reviews and Investigations
The purpose of the review case plan – Reviews and Investigations is to:
•
ensure that al relevant procedural fairness steps are taken in a timely manner at the appropriate stage of the IC review process
•
prevent unnecessary delays by ensuring procedural issues are addressed when they arise
•
increase efficiency and prevent replication by giving staff the tools to build on the work done and knowledge gained by their col eagues at each stage of
the case management process and
•
provide confidence to staff and the Executive that matters al ocated to the Significant Decisions Team are ready for a decision.
Review advisers in the Reviews and Investigations Team should complete the review case plan prior to transferring the matter to the Significant Decisions Team.
Use of the attachments for planning and review The review case plan – Reviews and Investigations includes 2 attachments:
•
Attachment A – Documents at issue – is a list of the documents at issue and the exemptions that apply to each
•
Attachment B –Further information required – is a matrix setting out what further information is required in relation to each issue.
• The purpose of these tools is to identify information gaps and plan the strategy for finalising the review. While the review case plan requires that
Review Advisers ensure the attachments are completed prior to transfer, Review Advisers in the Reviews and Investigations Team should ideal y
ensure the attachments are completed upon al ocation and updated over the course of the IC review.
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Attachment B: Further information required
The below table must be completed before allocating the matter to the Significant Decisions Team. Please complete the below table by including any relevant FOI Act requirements, any
further information required to properly assess each requirement, and the source of the information. For example:
FOI Act requirement
Further information required and source
S 24AB – was the request
Not under contention. No further information required
consultation process fol owed?
S 24AA – substantial diversion
The agency has indicated processing the request would take more than 250 hours but has not provided any
further details.
Request the agency provide:
• a breakdown of the 250 hours processing time and information about how it calculated that figure.
• whether sampling was undertaken and if so, copies of the sample documents
• information about the relevance of the sample and how it relates to the calculation of processing
time
S 24AA – unreasonable
The agency has not specifical y addressed unreasonable diversion in its decision or submissions.
diversion
Request the agency provide submissions as to why it considers
the work involved in processing the request
would unreasonably divert the resources from its other operations.
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