On 1 July 2024, significant updates to the Information Commissioner (IC) review procedure under the Freedom of Information Act 1982 (Cth) (Act) took effect. These changes, set out in two procedure directions made under section 55(2)(e)(i) of the Act, aim to enhance transparency, accountability and efficiency in handling Freedom of Information (FOI) requests.
Key requirements
1. Enhanced engagement with applicants
Under the new directions, the IC requires agencies to engage with applicants early in the process to resolve or narrow down the issues in relation to an IC review. This requirement is grounded in the general application of section 55DA of the Act which requires the agency to use best endeavours to assist decision making in relation to the IC review. Section 55DA should be read in conjunction with section 55(2)(d) of the Act which allows the IC to obtain any information from any person and to make any inquiries they consider appropriate.
The directions require agencies to provide the IC with information demonstrating the action taken to engage with the applicant and resolve or narrow down the issues. This may include written correspondence and file notes of telephone calls, video or telephone conferences. Further, correspondence should be provided regarding any proposals made by the agency to resolve the IC review informally and any response from the applicant. If an applicant has expressed a preference for the engagement other than by video or telephone conference, this should also be recorded and advised to the IC.
Compliance with the new directions will involve agencies allocating time and resources to facilitate effective communication and negotiation, and recording all correspondence. Agencies should assess their current processes and may wish to consider providing training for staff on mediation skills and effective communication strategies to address the directions. In many cases, agencies will already actively engage with applicants and the main effect of the directions will relate to providing this information to the IC.
Significantly, failure by an applicant to participate in the engagement process without reasonable excuse may result in the IC not continuing to undertake the review on the ground that the applicant has failed to cooperate in progressing the IC review application or the IC review without reasonable excuse (section 54W(a)(ii) of the Act).
2. Simultaneous submissions
The new directions state that agencies and applicants must submit their documents and arguments to each other and the Office of the Australian Information Commissioner (OAIC) simultaneously. This approach will ensure that parties and the IC can effectively prepare for and progress matters, as well as minimising delays and miscommunication. This will require systems to ensure timely compliance.
3. Specific procedures for deemed refusals and missing documents
The directions also include enhanced procedures for reviews concerning deemed access refusal decisions and documents that cannot be found or do not exist. In relation to those documents, the directions state that the IC will require a copy of any document that records searches conducted during the request process, including notes kept by individuals and correspondence between the FOI decision maker and individuals who conducted searches. Agencies will need to develop detailed guidelines and training for staff to handle these cases effectively, which often involve complex investigative processes between business areas and thorough documentation.
Failure to comply
The IC refers to the model litigant obligation under the Legal Services Directions 2017 which extends to Commonwealth entities involved in merits review proceedings. The directions note that failure to adhere to their requirements may amount to non-compliance with the model litigant obligation. The IC may report non-compliance in its annual report and to the Office of Legal Services Coordination in the Attorney-General's Department. The IC also highlighted its power to investigate any breach of the directions as non-compliance under Part VIIB of the FOI Act.
Conclusion
The changes to the IC review procedure present both opportunities and challenges for Australian government agencies. By understanding these new requirements and proactively addressing them, agencies can improve their FOI processes and enhance the conduct of IC reviews.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.