Review and Complaint

The Office of the Australian Information Commissioner (OAIC) website provides a comprehensive discussion of the review process.

Applicants seeking a review of an FOI access decision can access an internal review by the agency or the Information Commissioner. The immediacy of this right is intended to provide an incentive for agencies to ensure the best possible access decision is made at first instance. Reviews are usually merits based.

Information Commissioner reviews (IC reviews) are a simple, practical and cost-efficient system for external merits review. Most matters are reviewed on the basis of the submissions and papers provided by the parties, rather than through formal hearings. Agencies and ministers are required to assist the Information Commissioner to make the correct decision.

Review officers will consider the primary material in their early evaluations of the merits of the review case and make preliminary inquiries of the agency or minister involved. An application may be resolved by agreement between the parties, but in other cases the Information Commissioner may issue a written determination affirming, varying or setting aside and substituting the access decision. Applicants who disagree with the Information Commissioner’s decision can apply to the Administrative Appeals Tribunal (AAT) for review of the Information Commissioner’s decision.

An FOI applicant does not bear an onus of proof in either IC review or AAT review. This means that they do not have to further argue their case, rather, in an IC review, the agency or minister must establish that their decision is justified. In AAT proceedings, the agency or minister refusing the FOI request must establish that a decision adverse to the FOI applicant should be given.

To manage access requests that are clearly unreasonable, the Information Commissioner can restrict an applicant’s access rights by declaring the person to be a vexatious applicant.

You can request a review in writing or online. You can also make a complaint in a similar way. See the OAIC website for details about the online forms, and for the FOI Fact Sheet on review and complaint rights.