Our reference: MR19/00101
Agency reference: CRM 2019/229
Sam Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Decision not to undertake a review under s 54W
Dear Sam
I refer to your request for Information Commissioner review (IC review) of a decision deemed
to have been made by the Australian Federal Police (the AFP) on 11 January 2019 under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
The Office of the Australian Information Commissioner (OAIC) has not received a response
from you to our correspondence of 8 February 2019 and 21 February 2019 seeking your
advice as to whether you wished to proceed with your IC review application. As a delegate of
the Information Commissioner, I have decided to finalise this IC review under s 54W of the
FOI Act. My reasons follow.
Background
On 28 October 2018, you made a request to the AFP under the FOI Act via the website
www.righttoknow.org.au.
On 29 November 2018, the AFP sought a further period of 45 days in which to finalise you
request on the basis that there had been a delay in receiving the 227 folios the subject of
your request from the relevant line areas.
On 13 December 2018, a delegate of the Information Commissioner granted the AFP an
extension of time until 11 January 2019 to finalise your request under s 15AC of the FOI Act.
On 4 February 2019, you applied for IC review on the basis that the AFP had failed to make a
decision on your request within the statutory timeframe.
On 8 February 2019, the OAIC conducted preliminary inquiries with the AFP under s 54V of
the FOI Act.
On 8 February 2019, the AFP made a substantive decision on your request. The AFP identified
20 documents within the scope of your request, and gave you access to some documents in
full, some documents in part and refused access to the remaining documents in full. In
refusing access to the relevant material, the AFP relied on the certain persons or bodies
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
exemption (s 7), the documents affecting enforcement of law or protection of public safety
exemption (s 37), the certain operations of agencies exemption (s 47E) and the business
exemption (s 47G) of the FOI Act. The AFP also deleted material in the documents considered
irrelevant to your request under s 22 of the FOI Act.
On 8 February 2019, the OAIC review adviser responsible for this matter, Mr Carl English,
wrote to you seeking your advice as to whether you wished to proceed with the IC review
and if so, requesting a submission on the grounds on which you wished to proceed. Mr
English requested your response by 15 February 2019. The OAIC did not receive a response
from you.
In the absence of a response to his correspondence of 8 February 2019, Mr English wrote to
you again on 21 February 2019 seeking your advice as to whether you wished to proceed
with your IC review application. In his correspondence, Mr English advised that s 54W(a)(ii) of
the FOI Act provides that the Information Commissioner may decide not to undertake an IC
review where an applicant fails to cooperate in progressing an IC review application without
reasonable excuse.
Mr English advised that should the OAIC not receive a response from you to his email by
28 February 2019, your IC review application may be finalised by a delegate of the
Information Commissioner under s 54W(a)(ii).
Based on the information before me, the OAIC has not received a response to its
correspondence of 8 February 2019 and 21 February 2019.
Decision not to undertake a review
I am a delegate of the Information Commissioner.
Under s 54W of the FOI Act, the Information Commissioner may decide not to undertake a
review, or not to continue to undertake a review, if the IC review applicant has failed to
cooperate in progressing the IC review application, or the IC review, without reasonable
excuse.
The OAIC has not received a response from you to our correspondence of 8 February 2019
and 21 February 2019 seeking your advice as to whether you wish to proceed with the IC
review following the AFP’s substantive decision of 8 February 2019. As such, the OAIC is
unable to progress your IC review application.
On the basis of the information presently before the Information Commissioner, I am
satisfied that you have failed to cooperate in progressing your IC review application without
reasonable excuse.
In deciding whether to exercise the discretion not to undertake a review, I have considered
the information before me including:
your application for IC review dated 4 February 2019
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the AFP’s substantive decision of 8 February 2019, and
that the OAIC did not receive any response from you to our correspondence of
8 February 2019 and 21 February 2019.
As a delegate of the Information Commissioner, I have decided to exercise my discretion not
to undertake a review of your application under s 54W of the FOI Act.
I confirm that this IC review is now closed. Your review rights are set out below.
If you would like to discuss this matter, please contact Mr Carl English on (02) 9284 9745 or
on xxxxx@xxxx.xxx.xx. In all correspondence please quote MR19/00101.
Yours sincerely
Allan Teves
Director
Freedom of Information
22 March 2019
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Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a decision of
the Information Commissioner if you think that a decision by the Information Commissioner not to
review or not to continue to undertake review of your IC review application under the
Freedom of
Information Act 1982 (the FOI Act) is not legally correct. You can make this application under the
Administrative Decisions (Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the matter back to the Information
Commissioner for further consideration if it finds the decision was wrong in law or the Information
Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC sending the decision
or determination to you. You may wish to seek legal advice as the process can involve fees and costs.
Please contact the Federal Court registry in your state or territory for more information, or visit the
Federal Court website a
t http://www.fedcourt.gov.au/.
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 a
t http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on th
e Access our information1 page on our
website.
1
www.oaic.gov.au/about-us/access-our-information/.
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