www.oaic.gov.au
GPO Box 5218 Sydney NSW 2001
P +61 2 9284 9800 F +61 2 9284 9666
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xxxxxxxxx@xxxx.xxx.xx
Enquiries 1300 363 992 TTY 1800 620 241
ABN 85 249 230 937
Our reference: MR17/00242
Ms Verity Pane
Sent via email to: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Pane
Your application for IC review of a decision of the OAIC
I refer to your application for IC review of a decision of the Office of the Australian
Information Commissioner (OAIC) made on 4 May 2017 under the
Freedom of Information Act
1982 (the FOI Act).
As a delegate of the Information Commissioner, I am writing to advise that it is my intention
to finalise your application for IC review under s 54W(b) of the FOI Act to allow you to seek
review by the Administrative Appeals Tribunal (AAT).
I am writing to give you an opportunity to comment prior to a final decision being made in
this matter.
Background
On 4 March 2017, you made a request under the FOI Act to the OAIC for access to documents
relating to any consultation undertaken between the Privacy Commissioner or the OAIC and
Department of Veterans’ Affairs (DVA), the Minister for Veterans’ Affairs, or any other
Commonwealth Minister or official, on the Veterans’ Affairs Legislation Amendment (Digital
Readiness and Other Measures) Bill 2016.
On 23 March 2017, the OAIC transferred part of your request to DVA pursuant to s 16 of the
FOI Act.
On 3 April 2017, the OAIC made a decision identifying 45 documents as relevant to the
request. The OAIC granted access to seven documents in full and refused access to four
documents in part, and five documents in full, under ss 47C, 47E(d) and/or 47F of the FOI Act.
The remaining documents were released with deletions to remove material that was
regarded as irrelevant to your request under s 22(1)(a)(ii) of the FOI Act.
On 4 April 2017, you sought internal review of the OAIC’s decision. Specifically, you sought
review of the application of s 47E(d) of the FOI Act to the documents.
On 4 May 2017, the OAIC made a decision on internal review and found that the documents
at issue were exempt under s 47E(d) of the FOI Act.
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On 8 May 2017, you sought IC review of the OAIC’s internal review decision.
Discretion to close application under s 54W(b)
Under s 54W(b) of the FOI Act, the Information Commissioner may decide not to undertake a
review, or continue to undertake a review, if satisfied that the interests of the administration
of the FOI Act make it desirable that the IC reviewable decision be considered by the AAT.
Relevantly, in the OAIC’s decision record of 4 May 2017, you were notified that:
The Information Commissioner considers that it will usually not be in the interests of the administration
of the FOI Act to conduct an IC review of an FOI decision made by the agency that the Information
Commissioner heads: the OAIC.
For this reason, if you make an application for IC review of [the OAIC’s] decision, it is likely that the
Information Commissioner will decide (under s 54W(b) of the FOI Act) not to undertake an IC review on
the basis that it is desirable that any review be undertaken by the AAT. Section 57A of the FOI Act
provides that, before you can apply to the AAT for review of an FOI decision, you must first have applied
for IC review.
For this reason, it is my view that the interests of the administration of the FOI Act make it
desirable that the IC reviewable decision made by the OAIC be considered by the AAT.
In the circumstances, it is my intention as a delegate of the Information Commissioner to
finalise your application under s 54W(b) of the FOI Act to allow you to apply directly to the
AAT. I note that you will have 28 days from the date your IC review is finalised to lodge an
application for review with the AAT in accordance with ordinary AAT processes.
Next steps
If you would like to provide any submission on this proposed course of action, please respond
by
18 May 2017. Any submission will be taken in account before I make a final decision under
s 54W(b) of the FOI Act.
If you would like to discuss this matter, please contact Ishani Jayaweera on 02 9284 9882 or
by emailing xxxxxx.xxxxxxxxx@xxxx.xxx.xx.
Yours sincerely
Andrew Solomon
Assistant Commissioner
Dispute Resolution Branch
11 May 2017
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