Decision and reasons for decision of Rocelle Ago, 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 Services Australia of 29 September 2022, regarding which Services Australia 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:
   • Services Australia must process the applicant's request and notify the applicant of its decision no later than 30 days after it receives this decision.[1]
   • Services Australia must advise whether it has fully implemented my decision.

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

1. On 20 July 2022, the applicant applied to Services Australia for documents related to the applicant's CRN number.
2. Between 29 July 2022 and 29 August 2022, Services Australia engaged in informal consultations with the applicant.
3. On 28 October 2022, the applicant sought IC review under s 54L of the FOI Act, on the basis that Services Australia had been deemed to have refused the applicant's request under s 15AC of the FOI Act (a 'deemed refusal' decision).
4. On 3 February 2023, in response to inquiries by the Office of the Australian Information Commissioner (OAIC), Services Australia advised that it considered that the applicant had not made a valid FOI request as the request did not satisfy the requirement in paragraph 15(2)(b) of the FOI Act.
5. On 10 July 2023, the OAIC notified Services Australia under s 54Z of the FOI Act that the Information Commissioner would review Services Australia's decision and sought information to assist the Information Commissioner to conduct the review.
6. During the course of the IC review, Services Australia proposed a revised request that it would be able to process - clarifying the types of documents sought and the date range covered by the request. The applicant agreed to Services Australia's proposal.
7. In an IC review of an access refusal decision, Services Australia 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)).
8. Based on the information before me, I am satisfied that the practical refusal reason no longer exists.
9. Services Australia must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

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 ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

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].