Decision not to investigate a FOI complaint under
s 73 of the Freedom of Information Act 1982
Complainant
BE
Respondent agency
Department of Defence
Decision date
20 June 2024
OAIC reference number
CP23/01863
Agency reference
number
FOI 197/22/23
1.  As a delegate of the Information Commissioner, I am authorised to make a
decision under s 73 of the Freedom of Information Act 1982 (FOI Act)not to
investigate a FOI complaint about an action made under s 70 of the FOI.
2.  I have decided not to investigate the complainant’s FOI complaint under s 73
of the FOI Act as I am satisfied the FOI complaint is lacking in substance (s
73(e)).
Background
3.  On 16 December 2022, the complainant sought Information Commissioner (IC
review) of the Department of Defence’s (the Department) deemed access
refusal decision (FOI 197/22/23) regarding the FOI request of 12 October 2022
(OAIC reference: MR23/00024). The complainant also submitted an FOI
complaint to the Office of the Australian Information Commissioner (the
OAIC) in accordance with s 70 of the FOI Act in relation to an FOI request
4.  On 29 August 2023, the complainant withdrew their IC review following the
Department’s decision of 22 December 2022. The complainant advised that
they wished to proceed with their complaint about the Department’s
conduct.
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Issues raised by complainant
5.  The complaint raised the following issue:
•  The Department did not provide a decision within the statutory
timeframe, as required by s 15(2) of the FOI Act and
•  The Department did not provide an update regarding when the
decision would be made.
Considerations and preliminary inquiries
6.  In making my decision, I have had regard to the following:
•  the FOI complaint of 16 December 2022
•  the Department’s response to preliminary inquiries under s 72 of the FOI
Act
•  the IC review (OAIC reference: MR23/00024)
•  the FOI Act, in particular s 73(e) and,
•  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  [3.138], [11.4] to [11.5] and [11.11].
Preliminary inquiries
7.  On 3 June 2024, the OAIC conducted preliminary inquiries with the
Department in relation to the FOI complaint. I have assessed the issues and
considered the response provided by the Department.
8.  In their response of 18 June 2024, the Department acknowledges that when
seeking the complainant’s consent to the extension of time it should have
explained the complexities of the request relating to the subject matter of the
documents and the number of line areas needing to be consulted on their
release.  This may have affected the complainant’s hesitancy to agree to a 30
day extension of time. When the Department received the complainant’s
consent to further extend the processing period from 25 November 2022 to 28
November 2022 it was still consulting with a line area. The Department should
have advised the complainant that the extension until 28 November 2022 was
insufficient and that an extension of time would be sought from the
Information Commissioner under section 15AB of the FOI Act.
9.  The Department apologises to the complainant for the delay in finalising the
request, and for poor communication with regard to the reasons for the delay
and the likely timeframe for the decision to be provided.
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10. Since the complainant’s FOI request the Department has increased the size of
the FOI Directorate and created a new Deputy Secretary Governance role to
oversee the FOI function with an aim to improve efficiencies and processes.
Furthermore, all case officers in the FOI teams have been reminded of the
various options for seeking extensions of time to ensure FOI requests are
completed within the statutory timeframe.
Section 73(e) of the FOI Act
11. Under s 73(e) of the FOI Act, I may decide not to investigate a FOI complaint if
the Information Commissioner is satisfied that a complaint about an action
made under s 70 of the FOI Act is lacking in substance.
12. I note the Department has informed it is implementing changes in relation to
the issue raised within the FOI complaint.
13. The OAIC notes the complainant’s concerns in relation to the Department’s
non-adherence to the statutory timeframes and is actively monitoring the
Department in relation to this issue.
14. For these reasons, I am satisfied the FOI complaint is lacking in substance
pursuant to s 73(e) of the FOI Act.
Decision not to investigate the FOI complaint
15. In light of my findings above, I consider the discretion under s 73 not to
investigate the FOI complaint is enlivened in this matter. In deciding whether
to exercise the discretion not to investigate the FOI complaint, I have
considered that:
•  the FOI complaint is lacking in substance (s 73(e)).
•  the parties have not provided any additional information that alters my
view above, and
•  investigating the FOI complaint will not promote the objects of the FOI Act
(s 3).
Finalisation of the FOI complaint and review rights
16. I confirm the FOI complaint is now finalised and the file is closed. Information
about review rights is set out below.


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17. Information about how the OAIC’s handles a FOI complaint can be accessed
on the OAIC’s website here.

Yours sincerely,

Rocelle Ago
Assistant Commissioner
Freedom of Information
20 June 2024

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link to page 5

The complainant’s 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 investigate, or not to continue to investigate, a
complaint 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 receiving the
decision. 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
information1 page on our website.

1 https://www.oaic.gov.au/about-us/access-our-information/.
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Document Outline