Decision and reasons for decision of Justin Lodge, Acting General Manager Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

Freedom of Information - Respondent to process request following removal of practical refusal reason claim

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed refusal decision of the Department of Home Affairs (the Department) of 10 September 2021, regarding which the Department submitted a practical refusal reason applied. I substitute my decision that a practical refusal reason does not exist.
2. Within 30 days of this decision:
   • the Department must process the applicant's request and notify the applicant of its decision no later than 30 days after it receives this decision.[1]
   • the Department must advise whether it has fully implemented my decision.

1. This decision sets aside the deemed access refusal decision of the Department in circumstances where the Department initially submitted but no longer maintains a practical refusal reason exists.

1. On 31 July 2021, the applicant applied to the Department for all documents relating to the applicant held by the Department.
2. On 3 August 2021, the Department provided the applicant with a s 24AB notice stating that it intended to refuse the request under s 24AA(1)(b) of the FOI Act on the grounds that a practical refusal reason exists, as the request does not satisfy the requirement in paragraph 15(2)(b) (identification of documents).
3. On 13 August 2021, the applicant revised the scope of their request.
4. On 10 September 2021, the Department was deemed to have refused the applicant's request as the statutory timeframe for processing the applicant's request had lapsed.
5. On 2 September 2022, the Department made a purported decision to refuse the applicant's revised request under s 24AA(1)(b) on the basis that the applicant did not provide sufficient information concerning the document as is reasonably necessary to enable a responsible officer of the Department to identify the document. The purported decision has been treated as submissions for the purpose of this IC review.
6. On 9 September 2022, the applicant sought IC review of the Department's deemed refusal decision under s 54L of the FOI Act.
7. During the course of the IC review, the Department indicated that it no longer maintains that the applicant's revised request does not satisfy the requirement in paragraph 15(2)(b) (s 24AA(1)(b)), and that it is able to process the revised request.
8. In an IC review of an access refusal decision, the Department bears the onus of establishing that their decision is justified or that I should give a decision adverse to the IC review applicant (s 55D(1)).
9. Based on the information before me, I am satisfied that the practical refusal reason no longer exists.
10. The Department must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

Acting General Manager, Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the AAT. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.

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.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] On the question of the processing deadlines that now apply, see Fletcher and Prime Minister of Australia [2013] AICmr 11 [33] - [38].