FOIREQ24/00508 0439
[if relevant] Based on the information before me, the OAIC has not received a response.
OR [insert details of response or that no response was received]
Scope of IC review
The issues in this IC review are [insert wording from intention to decline letter].
In making a decision about whether to finalise this matter under s 54W(a)(i), I have had
regard to the following [insert wording from intention to decline letter and any other
relevant information].
[use heading to introduce discussion about the issues in
the IC review]
[insert discussion from the intention to decline letter]
[discuss any submissions received in response to the intention to decline letter]
Decision not to [undertake/continue to undertake] a review
I am a delegate of the Information Commissioner.
Under s 54W 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 IC review application is frivolous, vexatious, misconceived, lacking in substance or
not made in good faith.
I have had regard to:
• the «RespondentClientAbbreviation»'s decision and reasons for decision
• [if relevant insert details of internal review decision / revised decision]
• [if relevant] an unedited copy of the documents identified as falling within the scope of
the request
• the FOI Act, in particular [insert section/s]
• the Guidelines issued by the Australian 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 paragraphs [insert]
• [if relevant] relevant case law, in particular [insert], and
• the parties' submissions.
2
FOIREQ24/00508 0440
[Set out summary of reasons for findings as set out in intention to decline letter and
consideration of any submissions received in response to intention to decline letter].
On this basis, I am satisfied that the matter is [frivolous, vexatious, misconceived, lacking in
substance, or not made in good faith].
In deciding whether to exercise the discretion not to [undertake/continue to undertake] a
review, I have considered:
• Based on the information me, including the documents at issue, the
«RespondentClientAbbreviation»’s submissions, and relevant case law, I consider
that the «RespondentClientAbbreviation» has discharged its onus of establishing
that the decision is justified.
• [The OAIC did not receive any submissions/response from you @]
• Reviewing/continuing to review this matter will not promote the objects of the FOI
Act.
For these reasons, as a delegate of the Information Commissioner, I have decided to exercise
my discretion to decide not to [undertake / continue to undertake] a review of your
application under s 54W of the FOI Act. I confirm that this IC review is now closed. Your
review rights are set out below.
If you have any questions about this email, please contact
«InvestigativeOfficerFirstnameSurname» on «InvestigativeOfficerPhoneBH» or by email
«InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».
Yours sincerely
[First Name Last Name]
Director
Freedom of Information
4 November 2024
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 your 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.
3
FOIREQ24/00508 0441
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 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
FOIREQ24/00508 0442
Direction as to certain procedures to be followed by agencies and ministers in IC
reviews (1 July 2024) - Response time frames
Information Commissioner Reviews: Quick guide to use of directions and
information gathering powers | OAIC
IC review of access refusal and access grant decisions
Step
Time frame
Agency/Minister to respond to preliminary inquiry (3.3)
5 business days
Agency/Minister to respond to request for information under s
30 business days
54Z (3.6)
Agency/Minister to respond to s 55R notice for the production
10 business days
of documents (3.18)
Where the Agency/Minister undertakes third party consultation 20 business days
during the IC review, the Agency/Minister may be given an
opportunity to make submissions (3.32)
Agency/Minister to comply with IC ‘set aside’ decision or notify
28 days
that it will be seeking a review of the decision (3.35)
IC review of deemed access refusal
Step
Time frame
Agency/Minister to respond to preliminary inquiry (Annexure
5 business days
A1, 2.2)
Agency/Minister to respond to s 55(2) direction to either make a 15 business days
s 55G decision or provide submissions, information, and
exempt documents under s 55T (Annexure A1, 3.2)
If the applicant wishes to proceed after the above, the time frames for ‘IC review of access refusal and
access grant decisions’ (other than for preliminary inquiries) then apply (see Heath Baker’s presentation).
IC review of s 24A searches decisions
Step
Time frame
Agency/Minister to respond to preliminary inquiry (Annexure
5 business days
A2, 2.2)
Agency/Minister to respond to request for information under s
15 business days
54Z which may include a notice under s 55E or 55V (Annexure
A2, 4.1-4.3)
Case Management
Step
Time frame
During the case management an IC review – request for
10 business days
documents (other than those claimed to be exempt under ss
33, 34, and 45A
During the case management an IC review – request for
10 business days
documents involving the application of ss 33, 34 and 45A
During the case management of an IC review – request for
10 business days, or up to 20
further information such as submissions
business days if third party
consultation is required
FOIREQ24/00508 0443
Title
TRIM file
Website
Notes
D2021/008304 ,
https://www.oaic.gov.au/freedom-of-information/foi-
Conditional exemptions
D2020/016502
guidelines/part-6-conditional-exemptions
https://www.oaic.gov.au/freedom-of-information/foi-
Exempt material
D2022/018342
guidelines/part-5-exemptions
https://www.oaic.gov.au/freedom-of-information/foi-
Exemptions
D2021/008148
guidelines/part-5-exemptions
Difference between IC
reviews/Complaints/Deemed
https://www.oaic.gov.au/freedom-of-information/reviews-and-
access refusal
D2021/008340
complaints
https://www.oaic.gov.au/__data/assets/pdf_file/0019/8263/proce
Searches
D2021/008338
ssing-foi-requests-reasonable-steps-checklist.pdf
Paragraphs 3.142 to 3.167 of the IC Guidelines sets
out further details and provides practical advice when
https://education.oaic.gov.au/foi-essentials/
considering the extension of time provisions and
Extension of time applications
D2021/008244
https://education.oaic.gov.au/foi-essentials/#section-5
applications.
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint
https://www.oaic.gov.au/freedom-of-information/information-
2nd link includes the outcomes and recommendations
commissioner-decisions/freedom-of-information-investigation-
from FOI complaints investigations conducted
FOI Complaints
D2021/008243
outcomes
between 1 July 2019 and 22 June 2022
IC review overview
D2021/007970
https://www.oaic.gov.au/freedom-of-information/foi-
guidelines/part-3-processing-and-deciding-on-requests-for-
Practical refusals
D2021/008197
access
FOI Essentials
https://education.oaic.gov.au/foi-essentials/
Case Management
D2023/003256
Overview of current status of the law in relation to Practical
Refusal, Searches and Charges decisions, the key elements of
these sections of the FOI Act, and how the FOI Act has been
Access Refusals
D2023/017602
interpreted and applied in recent decision of the FOIC and ACFOI
Training session on ss 33 and 34 exemptions, together with
ss 33, 34, 55U and 55ZA
D2023/026118
update on processes under ss 55U and 55ZA
Efficient drafting and clearance of
high-quality decisions: key
messages
D2018/016241
Justin presented on 20/11/23
FOIREQ24/00508 0454
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).
FOIREQ24/00508 0464
Our reference:
Agency reference:
Contact
(agency)
Sent by email:
Information Commissioner review – s 55R notice to produce documents –
(applicant)
Dear (contact)
The Office of the Australian Information Commissioner (OAIC) is conducting an Information
Commissioner review (IC review) of a deemed decision of the (agency) to refuse documents
requested by (applicant) under the
Freedom of Information Act 1982 (Cth) (the FOI Act). Our
reference for this matter is (reference). Your reference for this number is (reference).
Background
On (date), (the applicant) made the following request for documents under the FOI Act:
Relevant background
In order to assist the Information Commissioner in progressing this IC review, I am issuing the
following notice under s 55R(3) of the FOI Act.
Notice to provide documents under s 55R of the FOI Act
Under s 55R(3) of the FOI Act, I require you to provide the following information:
• a response to the notice issued by the delegate of the Information Commissioner under s
55E of the FOI Act on (date).
In the event that your substantive decision applies exemptions to the documents requested, I also
require the following:
• a copy of the FOI request, and any correspondence that modifies its scope
• the names and contact details of anyone who was consulted in relation to this request,
formally under ss 15(7), 26A or 27A, or informally (if the informal consultation influenced
the decision)
• copies of any correspondence with anyone who was consulted in relation to this request,
including file notes of any relevant telephone conversations
• a marked up and unredacted copy of the documents at issue in an electronic format.
Material which is claimed to be exempt should be highlighted with reference made to the
exemption/s applied, and
FOIREQ24/00508 0465
• any submissions the (agency) wishes to make in support the decision.
Your obligations
In requesting the above information, I draw your attention to the following provisions under the
FOI Act, the Guidelines issued by the Information Commissioner under s 93A of the FOI Act (FOI
Guidelines) and the direction as to certain procedures to be followed in IC reviews (procedure
direction):
FOI Act
• Section 55D(1) of the FOI Act provides that the agency or minister has the onus of
establishing that a decision given in respect of the request or application is justified or the
Information Commissioner should give a decision adverse to the IC review applicant
• Section 55DA of the FOI Act requires agencies and ministers to assist the Information
Commissioner in conducting an IC review
• Section 55Z of the FOI Act authorises agencies and ministers to provide information for the
purposes of an IC review and provides a protection from liability for doing so.
FOI Guidelines and procedure direction
The Information Commissioner has issued guidelines under s 93A of the FOI Act that Australian
Government agencies and ministers must have regard to when performing a function or exercising
a power under the FOI Act: for information about the IC review process, see Part 10.
The ‘Direction as to certain procedures to be followed in IC reviews’ applies to agencies and
ministers during IC reviews and during preliminary inquiries prior to the commencement of an IC
review, if such inquiries are undertaken. The Direction sets out the procedures that agencies and
ministers must follow in respect of the production of documents, the provision of a statement of
reasons where access has been deemed to be refused and the provision of submissions.
In particular, paragraph 3.7 of the IC Review Procedure Direction requires agencies and ministers
to:
• justify any requests for the Information Commissioner to inspect documents
• justify any requests for the Information Commissioner to accept submissions in confidence
• provide a response within three weeks to the Information Commissioner’s request for
information in this notice, unless an extension of time has been sought and granted, and
• make a request in writing to the Information Commissioner with supporting evidence prior
to the due date if an extension of time is required.
The Information Commissioner will share the submissions you provide during IC review with the
applicant unless there are compelling reasons not to. However, we do not provide the applicant
with copies of the document/s at issue.
Third party notifications
Please consider whether it is necessary for you to notify any third parties (s 54P and s 54Q). If any
third parties are notified of this IC review, please provide the OAIC with a copy of the written
FOIREQ24/00508 0466
notifications. When notifying any relevant third parties under s 54P and 54Q of the FOI Act, please
provide to the third party the OAIC reference number (reference).
Please send your response to this notice to xxxxx@xxxx.xxx.xx.
I require you to produce the documents requested no later than (date).
I draw your attention to s 55R(5) of the FOI Act which makes it an offence to fail to comply with this
notice.
Compliance with this notice can be met by delivering the responses to the above notices
electronically to xxxxx@xxxx.xxx.xx. Alternatively, they can be delivered in person to the OAIC’s
Sydney office by contacting (review advisor) on (phone number) to arrange a delivery time.
Yours sincerely
Date
FOIREQ24/00508 0468
relevant person to receive this notice [OR we understand based on the details of the
Agency’s structure that you are the relevant person to receive this notice].
On this basis, I have issued a notice under s 55R of the FOI Act to require the production of
relevant documents as set out at
Attachment A. Compliance with the notice is due by
[2
weeks].
I draw your attention to s 55R(5) of the FOI Act which makes it an offence to fail to comply
with this notice.
If you have any questions, please contact me on (02) 9942 4205 or by email at
xxxxxxx.xxx@xxxx.xxx.xx.
Yours sincerely
Rocelle Ago Assistant Commissioner, Freedom of Information
13 March 2024
2
FOIREQ24/00508 0469
Attachment A
Notice to produce
under s 55R of the Freedom of Information Act 1982
In relation to MRXX/XXXXX, I, Rocelle Ago, delegate of the Australian Information
Commissioner, issue this notice to produce information and documents to [SES band 2
name], under s 55R of the
Freedom of Information Act 1982 (FOI Act).
The following information and documents are required to be provided to the Office of the
Australian Information Commissioner via email to xxxxx@xxxx.xxx.xx by
[2 weeks]:
1. The FOI request, and any correspondence that modifies its scope.
2. The names and contact details of anyone who was consulted by the Agency formally
under ss 15(7), 26A 27A, or informally (including consultations with other
government agencies).
3. A copy of written notifications for any third parties notified of this IC review
4. Copies of any correspondence between the Agency, and anyone who was consulted,
including file notes of any relevant telephone conversations.
5. A marked up and un-redacted copy of all documents identified within scope of the
FOI request that is subject of IC review (OAIC reference MRXX/XXXXX) in an electronic
format. Material which is claimed to be exempt should be highlighted with reference
made to the exemption/s applied.
6. Information about the reasons why the Agency maintains the access refusal decision.
Your obligations
In requesting the above information, I draw your attention to the following provisions under
the FOI Act, the Guidelines issued by the Information Commissioner under s 93A of the FOI
Act (FOI Guidelines) and the direction as to certain procedures to be followed in IC reviews
(procedure direction):
FOI Act
• Section 55D(1) of the FOI Act provides that the agency or minister has the onus of
establishing that a decision given in respect of the request or application is justified
3
FOIREQ24/00508 0470
or the Information Commissioner should give a decision adverse to the IC review
applicant
• Section 55DA of the FOI Act requires agencies and ministers to assist the Information
Commissioner in conducting an IC review
• Section 55Z of the FOI Act authorises agencies and ministers to provide information
for the purposes of an IC review and provides a protection from liability for doing so.
FOI Guidelines and procedure direction
The Information Commissioner has issued guidelines under s 93A of the FOI Act that
Australian Government agencies and ministers must have regard to when performing a
function or exercising a power under the FOI Act: for information about the IC review
process, see Part 10.
The Direction as to certain procedures to be followed by agencies and ministers in
Information Commissioner reviews (the Direction) applies to agencies and ministers during
IC reviews and during preliminary inquiries prior to the commencement of an IC review, if
such inquiries are undertaken. The Direction sets out the procedures that agencies and
ministers must follow in respect of the production of documents, the provision of a
statement of reasons where access has been deemed to be refused and the provision of
submissions.
In particular, the Direction requires agencies and ministers to:
• justify any requests for the Information Commissioner to inspect documents
• justify any requests for the Information Commissioner to accept submissions in
confidence
• provide a response within 10 business days to the Information Commissioner’s
request for information in this notice, unless an extension of time has been sought
and granted, and
• make a request in writing to the Information Commissioner with supporting
evidence prior to the due date if an extension of time is required.
Third party notifications
Please consider whether it is necessary for you to notify any third parties (s 54P and s 54Q). If
any third parties are notified of this IC review, please provide the OAIC with a copy of the
written notifications. When notifying any relevant third parties under s 54P and 54Q of the
FOI Act, please provide to the third party the OAIC reference number MRXX/XXXXX.
Responding to this notice
Please send your response to this notice to xxxxx@xxxx.xxx.xx.
I require you to produce the documents requested no later than
[2 weeks].
4
FOIREQ24/00508 0471
I draw your attention to s 55R(5) of the FOI Act which makes it an offence to fail to comply
with this notice.
Yours sincerely
Rocelle Ago
Assistant Commissioner, Freedom of Information
13 March 2024
5
FOIREQ24/00508 0472
Subject: Due [DATE] – OAIC - Notice Issued under s 55R of the FOI Act
OAIC ref:
Agency ref:
By email:
CC:
Dear Mr/Ms/Mrs XXSURNAMEXX,
Please find attached a letter and notice issued under s 55R of the
Freedom of Information Act 1982 (THE FOI Act) from Rocelle Ago, Assistant Commissioner, Freedom of Information, Office of the
Australian Information Commissioner.
You are required to comply with the specifics set out in the notice by [DUE DATE].
Kind regards,
[EL2 Signature]
FOIREQ24/00508 0474
weeks]. I draw your attention to s 55R(5) of the FOI Act which makes it an offence to fail to
comply with this notice.
If you have any questions, please contact me on (02) 9942 4205 or by email at
xxxxxxx.xxx@xxxx.xxx.xx.
Yours sincerely
Rocelle Ago Assistant Commissioner, Freedom of Information
13 March 2024
2
FOIREQ24/00508 0475
Attachment A
Notice to produce
under s 55R of the Freedom of Information Act 1982
In relation to MRXX/XXXXX, I, Rocelle Ago, delegate of the Australian Information
Commissioner, issue this notice to produce information and documents to [SES band 2
name], under s 55R of the
Freedom of Information Act 1982 (FOI Act).
The following information and documents are required to be provided to the Office of the
Australian Information Commissioner via email to xxxxx@xxxx.xxx.xx by
[2 weeks]:
1. The FOI request, and any correspondence that modifies its scope.
2. The names and contact details of anyone who was consulted by the Agency formally
under ss 15(7), 26A 27A, or informally (including consultations with other
government agencies).
3. A copy of written notifications for any third parties notified of this IC review
4. Copies of any correspondence between the Agency, and anyone who was consulted,
including file notes of any relevant telephone conversations.
5. A marked up and un-redacted copy of all documents identified within scope of the
FOI request that is subject of IC review (OAIC reference MRXX/XXXXX) in an electronic
format. Material which is claimed to be exempt should be highlighted with reference
made to the exemption/s applied.
6. Information about the reasons why the Agency maintains the access refusal decision.
Your obligations
In requesting the above information, I draw your attention to the following provisions under
the FOI Act, the Guidelines issued by the Information Commissioner under s 93A of the FOI
Act (FOI Guidelines) and the direction as to certain procedures to be followed in IC reviews
(procedure direction):
FOI Act
• Section 55D(1) of the FOI Act provides that the agency or minister has the onus of
establishing that a decision given in respect of the request or application is justified
3
FOIREQ24/00508 0476
or the Information Commissioner should give a decision adverse to the IC review
applicant
• Section 55DA of the FOI Act requires agencies and ministers to assist the Information
Commissioner in conducting an IC review
• Section 55Z of the FOI Act authorises agencies and ministers to provide information
for the purposes of an IC review and provides a protection from liability for doing so.
FOI Guidelines and procedure direction
The Information Commissioner has issued guidelines under s 93A of the FOI Act that
Australian Government agencies and ministers must have regard to when performing a
function or exercising a power under the FOI Act: for information about the IC review
process, see Part 10.
The Direction as to certain procedures to be followed by agencies and ministers in
Information Commissioner reviews (the Direction) applies to agencies and ministers during
IC reviews and during preliminary inquiries prior to the commencement of an IC review, if
such inquiries are undertaken. The Direction sets out the procedures that agencies and
ministers must follow in respect of the production of documents, the provision of a
statement of reasons where access has been deemed to be refused and the provision of
submissions.
In particular, the Direction requires agencies and ministers to:
• justify any requests for the Information Commissioner to inspect documents
• justify any requests for the Information Commissioner to accept submissions in
confidence
• provide a response within 10 business days to the Information Commissioner’s
request for information in this notice, unless an extension of time has been sought
and granted, and
• make a request in writing to the Information Commissioner with supporting
evidence prior to the due date if an extension of time is required.
Third party notifications
Please consider whether it is necessary for you to notify any third parties (s 54P and s 54Q). If
any third parties are notified of this IC review, please provide the OAIC with a copy of the
written notifications. When notifying any relevant third parties under s 54P and 54Q of the
FOI Act, please provide to the third party the OAIC reference number MRXX/XXXXX.
Responding to this notice
Please send your response to this notice to xxxxx@xxxx.xxx.xx.
I require you to produce the documents requested no later than
[2 weeks].
4
FOIREQ24/00508 0477
I draw your attention to s 55R(5) of the FOI Act which makes it an offence to fail to comply
with this notice.
Yours sincerely
Rocelle Ago
Assistant Commissioner, Freedom of Information
13 March 2024
5
FOIREQ24/00508 0479
s 22
FOIREQ24/00508 0480
s 22