Commonwealth FoI: Outcomes of requests
Reasons for decisions
Where an agency or minister refuses an applicant’s request for access to documents or defers access to documents, the decision-maker is required to give written reasons for the decision and to tell the applicant about their rights to have the decision reviewed (s 26). If the applicant has requested that any charges be reduced or waived, the decision- maker must also give written reasons for the decision and tell the applicant about their rights to have the decision reviewed (s 29(8)–(9)). Reasons must also be given where an agency or minister refuses an applicant’s request for personal records to be amended or annotated (s 51D(3)).
In addition, where the decision-maker has relied on a conditional exemption, they must include in their written reasons the public interest factors they took into account in making their decision (s 26(1)(aa)).
What if I am refused access?
An applicant who is refused access may apply for the decision to be reviewed by either the agency (internal review), usually by a different and more senior agency officer, or directly by the AI Commissioner (pts VI, VII). An application for review of an access refusal decision must be made in writing and within 30 days after the day the decision is notified to the applicant (ss 54B).
In the case of an internal review, the agency must make a review decision within 30 days (s 54C). If the applicant is not subsequently satisfied with the outcome of the internal review, they may seek to have the internal review decision reviewed by the AI Commissioner (s 54L(2)(b)). An application for review of an access refusal decision by the AI Commissioner must be made within 60 days after the day the decision is notified to the applicant (s 54S(1)). There is no fee for either the internal or AI Commissioner’s review.
The AI Commissioner has the power to affirm, vary or substitute a new decision for an FoI decision made by an agency or minister (s 55K(1)). The AI Commissioner may also decide not to review the decision in a number of circumstances (s 54W). For example, they may decide to refer the decision to the AAT if they are ‘satisfied that the interests of the administration of the FoI Act (Cth) make it desirable’ (s 54W(b)).
If an applicant disagrees with the AI Commissioner’s review decision, they may lodge an appeal with the AAT for a full merits review (s 57A(1) (a)). A decision made by the AAT ‘has the same effect as a decision of the agency or minister’ (s 58(1)). The standard application fee for an AAT review is $1,082. Applicants may be eligible to pay a reduced fee of $100, if, for example, the applicant is receiving legal aid for their application, is receiving certain Centrelink benefits, or faces financial hardship in paying the full fee. Information about application fees for an AAT review is available at www.aat.gov.au.
An applicant may appeal a decision of the AI Commissioner to the Federal Court on a question of law (s 56(1)).
