Challenging a Freedom of Information decision
The Freedom of Information Act 1982 (Cth) gives individuals the right to access documents held by Commonwealth government agencies and ministers. When an agency refuses access (in whole or in part), the applicant can seek internal review by a more senior officer within the agency, and then external review by the Office of the Australian Information Commissioner (OAIC). The IC can affirm, vary, or set aside the original decision.
This is an 8-step workflow for challenging a Freedom of Information decision where a Commonwealth agency has refused access to documents, granted only partial access, or applied exemptions. The two main review pathways are internal review by the agency and external review by the Australian Information Commissioner (IC review).
Before you start
- The agency's FOI decision notice (access refusal or partial access decision)
- A copy of the original FOI request
- Any documents released (in redacted or full form) and the schedule of documents
The workflow
Analyse the FOI decision
Review the agency's decision notice in detail. Identify which documents have been refused, the exemptions applied (ss 33, 34, 37, 42, 45, 47C, 47E, 47F, or others under Part IV of the FOI Act), and the reasoning for each exemption. Assess whether the agency properly applied the public interest test where required.
Assess the review options
Determine whether to seek internal review, IC review, or both. Internal review is free and must be decided within 30 days — it is worth pursuing as a first step. IC review can be sought directly (without internal review) or after internal review. Check the time limits — 30 days for internal review, 60 days for IC review from the decision date.
Request internal review
Write to the agency requesting internal review of the FOI decision. Identify the specific documents and exemptions being challenged, and set out why the exemptions have been incorrectly applied. The internal review officer must be a more senior officer than the original decision-maker.
Analyse the internal review decision
If the internal review affirms the original decision (in whole or in part), review the internal review decision notice. Identify any change in reasoning or any new exemptions applied. Assess whether the agency's position is defensible on each remaining document.
Prepare and lodge an IC review application
If the internal review decision is unsatisfactory, lodge an application for IC review with the OAIC within 60 days. Set out the documents still in dispute, the exemptions applied, and the applicant's arguments for why access should be granted. Include any new evidence or submissions.
Engage in the IC review process
The OAIC will contact the agency and may request the documents for inspection. Respond to any preliminary views issued by the IC's office. The IC often attempts informal resolution — be prepared to negotiate partial outcomes (e.g. additional documents released, narrower redactions).
Make submissions on exemptions and public interest
Prepare detailed submissions addressing each exemption claimed by the agency. For conditional exemptions (ss 47C, 47E, 47F, 47G), argue the public interest test — the factors favouring access (transparency, accountability, informed public debate) outweigh the factors against access. Reference IC guidance notes and prior IC decisions.
Receive the IC decision or escalate to the ART
The IC will issue a written decision affirming, varying, or setting aside the agency's decision. If the IC's decision is unfavourable, the applicant can seek review in the Administrative Review Tribunal (ART) within 28 days. Consider whether the remaining documents justify the cost and effort of ART proceedings.
What you will have at the end
A structured challenge to an unfavourable FOI decision, progressing through internal review and IC review. The applicant either obtains access to the requested documents or receives a detailed, reviewable decision from the Information Commissioner.
Common issues
- Missing the 30-day deadline for internal review or the 60-day deadline for IC review
- Agency applying blanket exemptions without document-by-document assessment
- Failing to address the public interest test for conditional exemptions
- The agency claiming legal professional privilege (s 42) over documents that are not genuinely privileged
- Practical irrelevance exemption (s 47E) being overused by agencies to withhold operational documents
Run this workflow on a real matter
Quillio helps analyse FOI decision notices, identify the exemptions applied, research prior IC decisions on similar exemptions, and draft submissions for internal review and IC review. See /practice-areas/administrative-lawyers or start a free trial.
This workflow is a general guide for challenging Commonwealth FOI decisions. State and territory FOI legislation has different procedures and review bodies. Always verify which FOI Act applies and the specific time limits for review.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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