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Intention to recommend that an Information Commissioner review not
continue to be undertaken under s 54W(b) of the Freedom of Information Act
1982
Information Commissioner review applicant
Discloser XXXXX
Agency
Commonwealth Ombudsman
Recommendation date
8 August 2025
OAIC reference number
MR22/00465
Agency reference numbers
FOI-2022-10013; 2022‐111104
Summary
1. I refer to the application made by Discloser XXXXX (the applicant) for Information
Commissioner review (IC review) of a decision made by the Commonwealth Ombudsman
under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
2. The purpose of this letter is to advise the parties of my intention to recommend that the
Information Commissioner or one of their delegates should exercise the discretion to decide
not to continue to undertake an IC review under s 54W(b) of the FOI Act. This is because I am of
the view that it is in the interests of the efficient administration of the FOI Act that this review
be closed and the applicant be provided the opportunity of applying directly to the
Administrative Review Tribunal (ART) for review in the first instance.
3. I am writing to both parties in this IC review to offer an opportunity to comment or make
submissions objecting to this.
Discretion not to continue to undertake an IC review
4. Under s 54W(b) of the FOI Act, the Information Commissioner may exercise the discretion 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 directly by the ART, rather than
initially by the Information Commissioner.
5. The effect of such a decision would allow the applicant to apply directly to the ART. The
applicant would then have 28 days to lodge an application with the ART, noting that ART filing
fees may appl
y.1
1 Se
e Administrative Review Tribunal - Fees.
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6. This is also referred to in the Guidelines issued by the Australian Information Commissioner
under s 93A (the FOI Guidelines) at [10.104], which state:
The Information Commissioner may decline to undertake a review if satisfied ‘that the interests of
the administration of the [FOI] Act make it desirable’ that the AAT consider the IC reviewable
decision (s 54W(b)). It is intended that the Information Commissioner will resolve most IC review
applications. Circumstances in which the Information Commissioner may decide that it is desirable
for the AAT to consider the IC reviewable decision instead of the Information Commissioner
continuing with the IC review inclu
de:2
• where the IC review is linked to ongoing proceedings before the AAT or a court
• where there is an apparent inconsistency between earlier IC review decisions and AAT
decisions
• where, should the application progress to an IC review decision, the IC review decision is likely
to be taken on appeal to the AAT on a disputed issue of fact
• where the FOI decision under review is of a level of complexity that it will be more
appropriately handled through the procedures of the AAT
• where there may be a perceived or actual conflict of interest in the Information Commissioner
undertaking the IC review, including where:
- the FOI request under review was made to, or decided by, the Information
Commissioner or their delegate
- the FOI request or material at issue relate to specific functions exercised by the
Information Commissioner under the Privacy Act
- the applicant has active matters in other forums, including the AAT or Federal Court
and the Information Commissioner is the respondent
• where consideration by the AAT would further the objects of the FOI Act, particularly in relation
to the performance and exercise of functions and powers given by the FOI Act to facilitate and
promote public access to information, promptly and at the lowest reasonable cost (s 3(4)).
7. However, the circumstances in which the Information Commissioner may consider it
desirable that the ART consider the IC review application, as outlined in the FOI Guidelines
above, are not exhaustive. There will be circumstances that are not listed where the
Information Commissioner may deem it desirable to refer the matter to the ART
. 3
Reasons for recommendation
8. In this IC review, it appears that it may be in the interests of the efficient administration of the
FOI Act that a delegate of the Information Commissioner exercises the discretion to decide
not to continue to undertake this IC review under s 54W(b) of the FOI Act because:
2 See
McKinnon and Department of Immigration and Citizenship [2012] AICmr 34. 3 See also the FOI Guidelines at [10.105] which states that ‘[w]hile the IC will consider the views of the review parties
before finalising an IC review under s 54W(b), the decision whether it is more appropriate for the AAT to consider the IC
reviewable decision ultimately rests with the IC’. I note the ART commenced operation from 14 October 2024, replacing
the former Administrative Appeals Tribunal (AAT).
• the decision under review is of a level of complexity that would be more appropriately
handled through the procedures of the ART. In particular this IC review is part of a
larger cohort of complex and interrelated matters currently before the OAIC involving
the same or similar FOI requests, all bearing some relationship to the investigation of
an allegation made under
the Public Interest Disclosure Act 2013 (the PID Act), and
extending to the consideration of a variety of exemptions and access refusal claims.
Given this, it would be more efficient for the related matters to be progressed
together. This would involve a high degree of complexity and a substantial allocation
of the OAIC’s resources, and the OAIC has already been delayed in progressing this IC
review for this reason. Any further delay may adversely impact the merits review
process as relevant information of evidence required to progress the IC review may be
diminished as a result
• I consider there to be a significant likelihood that any decision made by the
Information Commissioner or their delegate under s 55K of the FOI Act in this IC review
would be appealed by one or both of the parties, in light of the views the parties have
expressed to date on the disclosure or non-disclosure of the material at issue, and
• the ART’s more flexible and expansive processes and powers (including its alternative
dispute resolution provisions and remittal powers) mean that the ART may be better
suited to manage the significant challenges involved in case managing these IC
reviews in a consistent and efficient manner.
Next steps
9. The Office of the Information Commissioner (OAIC) may take into account the views of the
parties to an IC review before concluding an IC review pursuant to s 54W(b). While the
Information Commissioner will consider the views of the review parties before finalising an IC
review under s 54W(b), the decision whether it is more appropriate for the ART to consider the
IC reviewable decision ultimately rests with the Information Commissioner. Through the
functions conferred on the Information Commissioner under the FOI Act, the Information
Commissioner will be in the most informed position to determine whether the interests of the
administration of the FOI Act make it desirable for the ART to consider the IC reviewable
decision.
10. If you disagree with this proposed recommendation, please write to us by
22 August 2025
and advise us of your reasons. If you agree with the proposed recommendation, you are not
required to respond. However, should either party wish to provide additional information for
consideration by the Information Commissioner, or a delegated member of staff, you may do
so by the abovementioned date.
11. If more time is needed, a request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no later than 2 days before
that period is due to expire. Requests for more time must explain the exceptional
circumstances that necessitate additional time and propose a new date for response.
Approval of an extension request is at the discretion of the OAIC.
12. The parties will be notified and provided review rights if the IC review is finalised under s 54W(b)
of the FOI Act.
Yours sincerely,
Meka Larsen
Assistant Director
Freedom of Information Case Management Branch
8 August 2025
