FOIREQ19 00219 Documents released to A.pdf

s 22

FOIREQ19/00219 016
From:
Allan Teves
To:
Adie Chang; Carl English; Emily Harty; Hannah Kreiselmaier; Irene Nicolaou; Jessica Eslick; Margaret Sui;
Matthew Doherty; Rachel Ranjan; Raewyn Harlock; Rose Dlougatch; Sandra Wavamunno; Shelley Napper
Cc:
Allan Teves; Emma Liddle; Rocelle Ago
Subject:
Resolve templates [SEC=OFFICIAL]
Date:
Wednesday, 21 August 2019 2:52:21 PM
Attachments:
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Dear Team

18 of the template letters most commonly used by the FOI team have been loaded into Resolve
and are now ready for use.

Please see the table below listing the available templates, and information regarding where to
find the templates and how to generate them. Please note that in addition to the templates in
the table below, there are a range of ‘old’ templates in Resolve which have been superseded or
no longer work. I suggest you keep the below table handy for generating the relevant letters.

s 22

Kind regards, Allan.

Template summary
Template
Location in Resolve
Description
s 22

FOIREQ19/00219 017
s 22
MR - 039 - 54W(a)(i)
New Procedure „ FOI Letter Draft ITD letter to the applicant
Decline Advice Letter to Templates „ Case
under s 54W(a)(i) frivolous,
Applicant
Management Letters „ MR
vexatious, misconceived, lacking in
– 039 54W(a) Decline Letter substance or not made in good
to Applicant
faith.

MR - 040 - 54W(a)(ii)
New Procedure „ FOI Letter Draft ITD letter to the applicant
Decline Advice Letter to Templates „ Case
under s 54W(a)(ii) cannot contact
Applicant
Management Letters „ MR - the applicant after making
040 54W(a)(ii) Decline
reasonable attempts.
Advice Letter to Applicant
MR - 041 - 54W(a)(iii)
New Procedure „ FOI Letter Draft ITD letter to the applicant
Decline Advice Letter to Templates „ Case
under s 54W(a)(iii) applicant has
Applicant
Management Letters „ MR
failed to cooperate in progressing
– 041 54W(a)(iii) Decline
the IC review application, or the IC

FOIREQ19/00219 018
Advice Letter to Applicant
review, without reasonable excuse.
MR - 043 - 54W(b)
New Procedure „ FOI Letter Draft ITD letter to respondent under
Intent to Decline Letter Templates „ Case
54W(b) the interests of the
to Respondent
Management Letters „ MR - administration of the FOI Act make
043 54W(b) Intent to
it desirable that the IC reviewable
Decline Letter to
decision be considered by the AAT.
Respondent
MR - 043A - 54W(b)
New Procedure „ FOI Letter Draft ITD letter to applicant under
Intent to Decline Letter Templates „ Case
54W(b) the interests of the
to Applicant
Management Letters „ MR - administration of the FOI Act make
043A - 54W(b) Intent to
it desirable that the IC reviewable
Decline Letter to Applicant
decision be considered by the AAT.
MR - 042 - 54W(a)(i)
New Procedure „ FOI Letter Draft closure letter to the applicant
Closure Letter to
Templates „ Close Letters
under s 54W(a)(i) frivolous,
Applicant
(FOI) „ MR - 042 54W(a)(i)
vexatious, misconceived, lacking in
Closure Letter to Applicant
substance or not made in good
faith. Includes review rights.
MR - 042A - 54W(a)(ii)
New Procedure „ FOI Letter Draft closure letter to the applicant
Closure Letter to
Templates „ Close Letters
under s 54W(a)(ii) cannot contact
Applicant
(FOI) „ MR - 042A 54W(a)(ii) the applicant after making
Closure Letter to Applicant
reasonable attempts. Includes
review rights.
MR - 042B - 54W(a)(iii)
New Procedure „ FOI Letter Draft closure letter to the applicant
Closure Letter to
Templates „ Close Letters
under s 54W(a)(iii) applicant has
Applicant
(FOI) „ MR - 042B 54W(a)
failed to cooperate in progressing
(iii) Closure Letter to
the IC review application, or the IC
Applicant
review, without reasonable excuse.
Includes review rights.
MR - 044 - 54W(b)
New Procedure „ FOI Letter Draft closure letter to respondent
Closure Letter to
Templates „ Close Letters
under 54W(b) the interests of the
Respondent
(FOI) „ MR - 044 54W(b)
administration of the FOI Act make
Closure Letter to
it desirable that the IC reviewable
Respondent
decision be considered by the AAT.
Includes AAT information and
review rights.
MR - 044A - 54W(b)
New Procedure „ FOI Letter Draft closure letter to applicant
Closure Letter to
Templates „ Close Letters
under 54W(b) the interests of the
Applicant
(FOI) „ MR - 044A 54W(b)
administration of the FOI Act make
Closure Letter to Applicant
it desirable that the IC reviewable
decision be considered by the AAT.
Includes AAT information and
review rights.
s 22

FOIREQ19/00219 019
s 22

  Allan Teves  |  Director
Freedom of Information
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001  |  oaic.gov.au
+61 2 9284 9643   |  xxxxx.xxxxx@xxxx.xxx.xx
|
|
|
Subscribe to Information Matters

FOIREQ19/00219 021
[insert any other relevant background information, such as a revised decision under s 55G of
clarification of the issues in the IC review]
Scope of IC review
The issues in this IC review are [insert].
In forming my view as review officer, I have had regard to the following:
•  the «RespondentClientAbbreviation»'s decision and reasons for decision
•  [if relevant insert details of internal review decision / revised decision]
•  [if relevant] an unedited copy of the documents identified as falling within the scope of
the request
•  the FOI Act, in particular [insert section/s]
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act to which agencies must have regard in performing a function or exercising a power
under the FOI Act (FOI Guidelines), in particular paragraphs [insert]
•  [if relevant] relevant case law, in particular [insert], and
•  the parties' submissions.
[use heading to introduce discussion about the issues in the IC review]
Discuss the following, using headings where appropriate:
-  the applicant’s IC review application and/or submissions
-  the agency/minister’s reasons for decision and submissions
-  any evidence you have had regard to (e.g. the documents at issue, evidence of
searches)
-  relevant sections of the FOI Act and paragraphs of the FOI Guidelines
-  relevant IC review/AAT/Federal Court decisions
Discretion not to [undertake/continue to undertake] an IC review
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 Information Commissioner is satisfied
that the IC review application is frivolous, vexatious, misconceived, lacking in substance or
not made in good faith.
[Insert reasons for your view about why the application is frivolous, vexatious, misconceived,
lacking in substance or not made in good faith].
For these reasons, I intend to recommend that the Information Commissioner exercises the
discretion to decide not to [undertake/continue to undertake] this IC review under s 54W,
2

FOIREQ19/00219 022
because I am of the view that this IC review application is [frivolous, vexatious,
misconceived, lacking in substance or not made in good faith].
The delegate of the Information Commissioner will review all material before the OAIC in
deciding whether to exercise the discretion to decide [not to undertake a review/not to
continue to undertake a review] in this case.
In consideration of the above, it its open to you to withdraw you IC review application by [@
2 weeks].
If you disagree with this proposed recommendation, please write to us by [@ 2 weeks] and
advise us of your reasons. Your reasons will be taken into account before a decision is made
on whether to finalise this matter under s 54W.
If I do not hear from you by this date your IC review may be finalised under s 54W and you
will be notified of your review rights.
If you have any questions about this email, please contact me on
«InvestigativeOfficerPhoneBH» or by email «InvestigativeOfficerEMail». In all
correspondence please include OAIC reference «CaseNumber».
Yours sincerely

«InvestigativeOfficerFirstname» «InvestigativeOfficerSurname»
«InvestigativeOfficerPosition»
Freedom of Information
15 October 2019
3

FOIREQ19/00219 024
Discretion not to [undertake/continue to undertake] an IC review
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 Information Commissioner cannot
contact the IC review applicant after making reasonable attempts.
As discussed above, I have attempted to contact you using the contact details you provided
on your IC review application form [and insert other details if relevant] and I have been
unable to contact you.
I therefore intend to recommend to the delegate of the Information Commissioner that they
exercise the discretion not to [undertake/continue to undertake] a review of this IC review
application under s 54W of the FOI Act unless you contact me by [@ 2 weeks].
In consideration of the above, it its open to you to withdraw you IC review application by [@
2 weeks].
If I do not hear from you by this date your IC review will be finalised under s 54W and you will
be notified of your review rights.
If you have any questions about this email, please contact me on
«InvestigativeOfficerPhoneBH» or by email «InvestigativeOfficerEMail». In all
correspondence please include OAIC reference «CaseNumber».
Yours sincerely

«InvestigativeOfficerFirstnameSurname»
«InvestigativeOfficerPosition»
Freedom of Information
15 October 2019
2

FOIREQ19/00219 026
[insert history of contact with the applicant throughout the IC review process with reference
to dates, a summary of the information provided to or sought from the applicant and
whether responses were received]
Discretion not to [undertake/continue to undertake] an IC review
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.
[update as appropriate] As I have not received your response to my correspondence of
[insert], I am unable to progress your IC review application. I therefore intend to recommend
to the delegate of the Information Commissioner that they exercise the discretion to decide
not to [undertake/continue to undertake] a review of this IC review under s 54W of the
FOI Act.
The delegate of the Information Commissioner will review all material before the OAIC in
deciding whether to exercise the discretion to decide [not to undertake a review/not to
continue to undertake a review] in this case.
If you disagree with this proposed recommendation, please write to us by [@ 2 weeks] and
advise us of your reasons. Your reasons will be taken into account before a decision is made
on whether to finalise this matter under s 54W.
In consideration of the above, it its open to you to withdraw you IC review application by [@
2 weeks].
If I do not hear from you by this date your review request will be closed and you will be
notified of your review rights.
If you have any questions about this email, please contact me on
«InvestigativeOfficerPhoneBH» or by email «InvestigativeOfficerEMail». In all
correspondence please include OAIC reference «CaseNumber».
Yours sincerely

«InvestigativeOfficerFirstnameSurname»
«InvestigativeOfficerPosition»
Freedom of Information
15 October 2019
2

FOIREQ19/00219 028
In making a decision about whether to finalise this matter under s 54W(a)(i), I have had
regard to the following [insert wording from intention to decline letter and any other
relevant information].
[use heading to introduce discussion about the issues in the IC review]
[insert discussion from the intention to decline letter]
[discuss any submissions received in response to the intention to decline letter]
Decision not to [undertake/continue 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 Information Commissioner is satisfied
that the IC review application is frivolous, vexatious, misconceived, lacking in substance or
not made in good faith.
I have had regard to:
•  the «RespondentClientAbbreviation»'s decision and reasons for decision
•  [if relevant insert details of internal review decision / revised decision]
•  [if relevant] an unedited copy of the documents identified as falling within the scope of
the request
•  the FOI Act, in particular [insert section/s]
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act to which agencies must have regard in performing a function or exercising a power
under the FOI Act (FOI Guidelines), in particular paragraphs [insert]
•  [if relevant] relevant case law, in particular [insert], and
•  the parties' submissions.
[Set out summary of reasons for findings as set out in intention to decline letter and
consideration of any submissions received in response to intention to decline letter].
On this basis, I am satisfied that the matter is [frivolous, vexatious, misconceived, lacking in
substance, or not made in good faith].
In deciding whether to exercise the discretion not to [undertake/continue to undertake] a
review, I have considered:
•  Based on the information me, including the documents at issue, the
«RespondentClientAbbreviation»’s submissions, and relevant case law, I consider
2

FOIREQ19/00219 029
that the «RespondentClientAbbreviation» has discharged its onus of establishing
that the decision is justified.
• [The OAIC did not receive any submissions/response from you @]
• Reviewing/continuing to review this matter will not promote the objects of the FOI
Act.
For these reasons, as a delegate of the Information Commissioner, I have decided to exercise
my discretion to decide not to [undertake / continue 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 have any questions about this email, please contact
«InvestigativeOfficerFirstnameSurname» on «InvestigativeOfficerPhoneBH» or by email
«InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».
Yours sincerely

[First Name Last Name]
Director
Freedom of Information
15 October 2019
3

FOIREQ19/00219 030
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 at 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 at 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 the Access our information1 page on our
website.

1  www.oaic.gov.au/about-us/access-our-information/.
4

FOIREQ19/00219 032
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.
[update as appropriate] The OAIC has not received a response from you to our [insert dates
and details of correspondence]. On the basis of the information presently before the
Information Commissioner, I am satisfied that you have failed to cooperate in progressing
the IC review application without reasonable excuse.
In deciding whether to exercise the discretion not to [undertake/continue to undertake] a
review, I have considered:
•  Based on the information me, including the documents at issue, the
«RespondentClientAbbreviation»’s submissions, and relevant case law, I consider
that the «RespondentClientAbbreviation» has discharged its onus of establishing
that the decision is justified.
•  [The OAIC did not receive any submissions/response from you @]
•  Reviewing/continuing to review this matter will not promote the objects of the FOI
Act.
As a delegate of the Information Commissioner, I have decided to exercise my discretion to
decide not to [undertake / continue 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 have any questions about this email, please contact «InvestigativeOfficerTitle»
«InvestigativeOfficerSurname» on «InvestigativeOfficerPhoneBH» or by email
«InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».
Yours sincerely

[First Name Last Name]
Director
Freedom of Information
15 October 2019
2

FOIREQ19/00219 033
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 at 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 at 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 the Access our information1 page on our
website.

1  www.oaic.gov.au/about-us/access-our-information/.
3

FOIREQ19/00219 035
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 Information Commissioner cannot
contact the IC review applicant after making reasonable attempts.
«InvestigativeOfficerTitle» «InvestigativeOfficerSurname» has attempted to contact you on
several occasions using the contact details that you provided and we have not received a
response.
In deciding whether to exercise the discretion not to [undertake/continue to undertake] a
review, I have considered:
• The OAIC did not receive any submissions/response from you @
• Reviewing/continuing to review this matter will not promote the objects of the FOI
Act.
For these reasons, as a delegate of the Information Commissioner, I have decided to exercise
my discretion to decide not to [undertake / continue to undertake] a review of your IC review
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 have any questions about this email, please contact
«InvestigativeOfficerFirstnameSurname» on «InvestigativeOfficerPhoneBH» or by email
«InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».
Yours sincerely

[First Name Last Name]
Director
Freedom of Information
15 October 2019

2

FOIREQ19/00219 036
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 at 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 at 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 the Access our information1 page on our
website.

1  www.oaic.gov.au/about-us/access-our-information/.
3

FOIREQ19/00219 038
On [date], the applicant sought IC review of the «RespondentClientAbbreviation»’s decision
under s 54L of the FOI Act.
[insert any other relevant background information]
Discretion not to [undertake/continue to undertake] an IC review
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 Information Commissioner is satisfied
that the interests of the administration of the FOI Act make it desirable that the IC reviewable
decision be considered by the AAT.
The effect of such a decision would be to finalise this IC review application and allow the
applicant to apply directly to the AAT. The applicant would then have 28 days to lodge an
application with the AAT in accordance with ordinary AAT processes.
[insert reasons for recommendation]
For these reasons, I intend to recommend to the delegate of the Information Commissioner
that that they exercise the discretion not to [undertake/continue to undertake] a review of
this IC review application under s 54W of the FOI Act, as I am of the view that it is in the
interests of the administration of the FOI Act that this review be closed and the applicant be
provided the opportunity of applying directly to the AAT for review.
The delegate of the Information Commissioner will review all material before the OAIC in
deciding whether to exercise the discretion to decide not to [undertake/ continue to
undertake] a review in this case.
Next steps
If the «RespondentClientAbbreviation» disagrees with this proposed recommendation,
please write to us by [@ 2 weeks] and provide reasons. These reasons will be taken into
account before a decision is made on whether to finalise this matter under s 54W.
If I do not hear from the «RespondentClientAbbreviation» by this date, this IC review
application may be finalised under s 54W.
If you would like to discuss this matter, please contact me on «InvestigativeOfficerPhoneBH»
or by email «InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».

Yours sincerely

2

FOIREQ19/00219 039

«InvestigativeOfficerFirstnameSurname»
«InvestigativeOfficerPosition»
Freedom of Information
15 October 2019
3

FOIREQ19/00219 041
[insert any other relevant background information]
Discretion not to [undertake/continue to undertake] an IC review
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 Information Commissioner is satisfied
that the interests of the administration of the FOI Act make it desirable that the IC reviewable
decision be considered by the AAT.
The effect of such a decision would be to finalise your IC review application and allow you to
apply directly to the AAT. You would then have 28 days to lodge an application with the AAT
in accordance with ordinary AAT processes. AAT filing fees may apply.1
[insert reasons for recommendation]
For these reasons, I intend to recommend to the delegate of the Information Commissioner
that they exercise the discretion not to [undertake/continue to undertake] a review of your
IC review application under s 54W, as I am of the view that it is in the interests of the
administration of the FOI Act that this review be closed and you be provided the opportunity
of applying directly to the AAT for review.
The delegate of the Information Commissioner will review all material before the OAIC in
deciding whether to exercise the discretion to decide not to [undertake/continue to
undertake] a review in this case.
Next steps
If you disagree with this proposed recommendation, please write to us by [@ 2 weeks] and
advise us of your reasons. Your reasons will be taken into account before a decision is made
on whether to finalise this matter under s 54W.
If I do not hear from you by this date your IC review application may be finalised under s 54W
and you will be notified of your review rights.
If you have any questions about this email, please contact me on
«InvestigativeOfficerPhoneBH» or by email «InvestigativeOfficerEMail». In all
correspondence please include OAIC reference «CaseNumber».
Yours sincerely

1 See, http://www.aat.gov.au/applying-for-a-review/fees.
2

FOIREQ19/00219 042
«InvestigativeOfficerFirstnameSurname»
«InvestigativeOfficerPosition»
Freedom of Information
15 October 2019
3

FOIREQ19/00219 044
Decision not to [undertake/continue 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 Information Commissioner is satisfied
that the interests of the administration of the FOI Act make it desirable that the IC reviewable
decision be considered by the AAT.
I have had regard to:
•  the «RespondentClientAbbreviation»'s decision and reasons for decision
•  [if relevant insert details of internal review decision / revised decision]
•  [if relevant] an unedited copy of the documents identified as falling within the scope
of the request
•  the FOI Act, in particular [insert section/s]
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act to which agencies must have regard in performing a function or exercising a
power under the FOI Act (FOI Guidelines), in particular paragraphs [insert] and
[10.88] – [10.89]
•  [if relevant] relevant case law, in particular [insert], and
•  the parties' submissions.
I have considered the issues in this matter and I am satisfied that it is in the interests of the
administration of the FOI Act that the IC reviewable decision be considered by the AAT
because:
•  [review and update as appropriate]
•  the IC review is linked to ongoing proceedings in the AAT or a court
•  there is an apparent inconsistency between earlier IC review decisions and AAT
decisions
•  the exemptions applied to the documents under s [insert section/s] of the FOI Act in
this IC review are highly contested and there are a number of affected third parties
who must be given a reasonable opportunity to present their case before a final
decision is made (s 55(4)(b))
•  the IC review decision is likely to be taken on appeal to the AAT on a disputed issue of
fact
•  the FOI request under review is complex or voluminous, resolving the IC review
matter would require a substantial allocation of OAIC resources, and the matter could
more appropriately be handled through the procedures of the AAT
2

FOIREQ19/00219 045
•  the OAIC is the primary decision-maker of the decision under review.
In deciding whether to exercise the discretion not to [undertake / continue to undertake] a
review, I have considered:
•  [review and update as appropriate]
•  The Explanatory Memorandum to the Freedom of Information Amendment (Reform)
Bill 2009 which created s 54W states: One of the reasons for retaining a right of review
to the AAT is that, as an experienced review body, the AAT can properly deal with
highly contested applications. This provision enables the Information Commissioner
to decline to undertake a review if satisfied it would be more appropriate and efficient
for the application to be made directly to the AAT.
•  The objects of the FOI Act provide that functions and powers under the FOI Act are to
be performed and exercised, as far as possible, to facilitate and promote public access
to information, promptly and at the lowest reasonable cost.
•  In accordance with the objects of the FOI Act, paragraph [10.18] of the FOI Guidelines
provides that IC reviews are intended to be a simple, practical and cost efficient
method of external merit review.
•  [Where the OAIC is the primary decision maker] The perceived conflict of interest in
the Information Commissioner reviewing a decision made by their own agency.
For these reasons, as a delegate of the Information Commissioner, I have decided to exercise
my discretion to decide not to [undertake / continue to undertake] a review of this IC review
application under s 54W of the FOI Act. I confirm that this IC review is now closed.
Next steps
I have notified the applicant of the finalisation of this matter under s 54W today. The
applicant now has 28 calendar days to make an application for review of the relevant
IC reviewable decision to the AAT in accordance with s 57A of the FOI Act.
If you have any questions about this email, please contact
«InvestigativeOfficerFirstnameSurname» on «InvestigativeOfficerPhoneBH» or by email
«InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».
Yours sincerely

[First Name Last Name]
Director
Freedom of Information
15 October 2019
3

FOIREQ19/00219 046
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 at 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 at 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 the Access our information1 page on our
website.

1  www.oaic.gov.au/about-us/access-our-information/.
4

FOIREQ19/00219 048
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 Information Commissioner is satisfied
that the interests of the administration of the FOI Act make it desirable that the IC reviewable
decision be considered by the AAT.
I have had regard to:
•  the «RespondentClientAbbreviation»'s decision and reasons for decision
•  [if relevant insert details of internal review decision / revised decision]
•  [if relevant] an unedited copy of the documents identified as falling within the scope of
the request
•  the FOI Act, in particular [insert section/s]
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI
Act to which agencies must have regard in performing a function or exercising a power
under the FOI Act (FOI Guidelines), in particular paragraphs [insert] and [10.88] – [10.89]
•  [if relevant] relevant case law, in particular [insert], and
•  the parties' submissions.
I have considered the issues in this matter and I am satisfied that it is in the interests of the
administration of the FOI Act that the IC reviewable decision be considered by the AAT
because:
•  [review and update as appropriate]
•  the IC review is linked to ongoing proceedings in the AAT or a court
•  there is an apparent inconsistency between earlier IC review decisions and AAT decisions
•  the exemptions applied to the documents under s [insert section/s] of the FOI Act in this
IC review are highly contested and there are a number of affected third parties who must
be given a reasonable opportunity to present their case before a final decision is made (s
55(4)(b))
•  the IC review decision is likely to be taken on appeal to the AAT on a disputed issue of fact
•  the FOI request under review is complex or voluminous, resolving the IC review matter
would require a substantial allocation of OAIC resources, and the matter could more
appropriately be handled through the procedures of the AAT
•  the OAIC is the primary decision-maker of the decision under review.
2

FOIREQ19/00219 049
In deciding whether to exercise the discretion not to [undertake / continue to undertake] a
review, I have considered:
•  [review and update as appropriate]
•  The Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill
2009 which created s 54W states: One of the reasons for retaining a right of review to the
AAT is that, as an experienced review body, the AAT can properly deal with highly
contested applications. This provision enables the Information Commissioner to decline
to undertake a review if satisfied it would be more appropriate and efficient for the
application to be made directly to the AAT.
•  The objects of the FOI Act provide that functions and powers under the FOI Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
•  In accordance with the objects of the FOI Act, paragraph [10.18] of the FOI Guidelines
provides that IC reviews are intended to be a simple, practical and cost efficient method
of external merit review.
•  [Where the OAIC is the primary decision maker] The perceived conflict of interest in the
Information Commissioner reviewing a decision made by their own agency.
For these reasons, as a delegate of the Information Commissioner, I have decided to exercise
my discretion to decide not to [undertake / continue to undertake] a review of your
application under s 54W of the FOI Act. I confirm that this IC review is now closed.
Next steps
You now have 28 calendar days from the date of this notice to make an application for review
of the relevant IC reviewable decision to the AAT in accordance with s 57A of the FOI Act.
If you disagree with my decision under s 54W of the FOI Act, information about your review
rights is set out below.
If you have any questions about this email, please contact
«InvestigativeOfficerFirstnameSurname» on «InvestigativeOfficerPhoneBH» or by email
«InvestigativeOfficerEMail». In all correspondence please include OAIC reference
«CaseNumber».
Yours sincerely

[First Name Last Name]
Director
Freedom of Information
3

FOIREQ19/00219 050
15 October 2019

4

FOIREQ19/00219 051
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 at 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 at 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 the Access our information1 page on our
website.

1  www.oaic.gov.au/about-us/access-our-information/.
5

FOIREQ19/00219 052
From:
Andrew Solomon
To:
Rocelle Ago; Allan Teves; Emma Liddle
Subject:
FW: Powell & Anor v Australian Information Commissioner & Anor [2019] FCCA 39 - Case note [HR-
BRS.FID281358]
Date:
Saturday, 26 January 2019 3:09:37 PM
Attachments:
image002.png
Letter to Office of the Australian Information Commissioner 18.01.19.pdf
Powell Anor v Australian Information Commissioner Anor 2019 FCCA 39 - Draft correspondence HR-
BRS.FID281358.msg
All, attached is a case note re the recent Powell decision on use of the discretion in s54W in the
FOI Act and s 42
.

I’m interested in your thoughts on the implications for the FOI case management work – what
changes to templates will be required and how to communicate the clarification of how the
decision to use the s 54W discretion should be reflected in any PV or intent to decline letters and
decision letters.

The upshot is that in a decision to exercise the discretion in s54W to not to continue or not
undertake a review we will now need to clearly 1) make a finding that we are satisfied that one, or
more, of the preconditions in s54W has been met and 2) provide reasons why we are exercising
the discretion in s54W to close. s 42

We probably need to talk though what this would look like in a few common scenarios to start off
with.

Andrew
s 42

FOIREQ19/00219 053
s 42

s 42