Your review rights
Client fact sheet
If you disagree with the decision made by the Department of Defence under the Freedom of Information Act
(the FOI Act), you can ask for an external review by the Australian Information Commissioner. You may
want to seek review if you sought certain documents and were not given full access.
Who will conduct the review?
Staff of the Information Commissioner will conduct
The Information Commissioner is an independent
the review. Only the Information Commissioner, the
office holder who can review the decisions of
FOI Commissioner or the Privacy Commissioner can
agencies under the FOI Act.
make a decision at the end of the review.
Do I have to pay?
Does the Information Commissioner have to
review my matter?
No. The Information Commissioner's review is free.
No. The Information Commissioner may decide not
How do I apply?
to review an application that is frivolous,
You must apply in writing and you can lodge your
misconceived or lacking in substance, or if you fail to
application in one of the following ways:
cooperate with the process or cannot be contacted
after reasonable attempts. You cannot appeal
against that decision.
Alternatively the Information Commissioner may
decide that the Administrative Appeals Tribunal
An application form is available on the website at
(AAT) would be better placed to review the matter,
Your application should include a
and if so, will advise you of the procedure for applying
copy of the notice of the decision that you are
to the AAT. This will not be common.
objecting to (if one was provided), and your contact
details. You should also set out why you are objecting
Can I withdraw my application?
to the decision.
Yes. An application can be withdrawn at any time
Can I get help in completing the application?
before the Information Commissioner makes a
Yes. The Information Commissioner's staff are
available to help you with your application if anything
What happens in the review process?
The review process is designed to be as informal as
When do I have to apply?
possible. The Information Commissioner may
contact you or any of the other parties to clarify
If you are objecting to a decision to refuse access to
matters and seek more information. The Information
documents you must apply to the Information
Commissioner may also ask the agency to provide
Commissioner within 60 days
of being given notice
reasons for their decision if the reasons given were
of the decision.
You can ask the Information Commissioner for an
Most reviews will be made on the basis of the
extension of time to apply, and this may be granted if
submissions and papers provided by the parties.
the Information Commissioner considers it is
Sometimes the Information Commissioner may
reasonable in the circumstances.
decide to hold a hearing if one of the parties applies.
Parties may participate in a hearing by telephone. If
confidential matters are raised, the hearing may be
held partly or wholly in private.
Can someone else represent me?
What decisions can the Information
Yes, including a lawyer. However, the Information
Commissioner prefers the process to be as informal
After reviewing a decision, the Information
and cost-effective as possible and does not
Commissioner must do one of three things:
encourage legal representation.
• set the decision aside and make a fresh
Will the Information Commissioner look at the
searches conducted to identify documents
• affirm the decision; or
captured by the request?
• vary the decision.
Yes. The Information Commissioner's review is a
The Information Commissioner will give reasons for
fresh decision, so all the relevant material must be
examined, including details of searches conducted
by an agency to establish if documents exist.
Will the decision be made public?
Developments that have occurred since the original
Yes. The Information Commissioner will publish
decision may also be considered.
decisions on the website. Exempt material (that is,
material that is not released) will not be included. Nor
What powers does the Information
will the name of the review applicant, unless that
person requests otherwise or there is a special
While the review process is designed to be informal,
reason to publish it.
the Information Commissioner has formal powers to
require anyone to produce information or documents,
What can I do if I disagree with the Information
to compel anyone to attend to answer questions and
Commissioner's review decision?
to take an oath or affirmation that their answers will
You can appeal to the Administrative Appeals
Tribunal (AAT). The Information Commissioner will
An agency can also be ordered to undertake further
not be a party to those proceedings. There is a fee
searches for documents.
for lodging an AAT application, although there are
exemptions for health care and pension concession
card holders and the AAT can waive the fee on
financial hardship grounds. Further information can
be found on their website www.aat.gov.au.
Making a complaint
You may make a complaint to the Information Commissioner about actions taken by Defence in relation to your
application. The complaint needs to be in writing and lodged in one of the ways indicated above under the heading
‘How do I apply’.