FOI Case Management - Home - OAIC of the Australian Information Commissioner FOI Case Management 1 Contents Case Management Guide 3 Introduction

FOI Case Management

Case Management Guide

Exempt Material Guide

1 May 2013

Office of the Australian Information Commissioner

FOI Case Management 1

Contents

Case Management Guide ........................................................................... 3

Introduction .......................................................................................................................... 3

Section One – Registration, Triage and Allocation ............................................... 4

Registration ........................................................................................................................... 4

Triage .................................................................................................................................... 7

Mail Assessor and Allocation .............................................................................................. 11

Section Two – Extensions of Time ..................................................................... 12

Section 15AA – Extension of time with agreement ............................................................ 12

Section 15AB – Extension of time for complex or voluminous requests ........................... 15

Section 15AC – Decision not made on request within time – deemed refusal .................. 19

Section 54D – Internal review – deemed affirmation of original decision ......................... 24

Section Three –Assessment and Investigation ................................................... 29

Allocation of Complaints and IC reviews ............................................................................ 29

Information Commissioner Investigations – Complaints ................................................... 29

Information Commissioner (IC) Reviews ............................................................................ 36

FOI Case Management Templates ...................................................................................... 47

Exempt Material Guide ............................................................................. 50

Overview ............................................................................................................................. 50

Summary guide to handling exempt material .................................................... 50

Receiving exempt material ................................................................................................. 50

Storage of exempt material ................................................................................................ 51

Return / destruction of exempt material ........................................................................... 51

The Protective Security Policy Framework ........................................................ 51

Overview ............................................................................................................................. 51

What classification applies to exempt material in a review? ............................................. 52

Storage of exempt material .............................................................................. 53

Hardcopy or electronic? ...................................................................................................... 53

Storage of hardcopy exempt material ................................................................................ 53

Storage of exempt material electronically ......................................................................... 54

Making copies or printouts of exempt material ................................................................. 54



Keeping records of exempt material in Resolve ................................................. 54

Destruction and return of exempt material ....................................................... 55

Destroy or return? .............................................................................................................. 55

Hardcopy exempt material ................................................................................................. 55

Electronic exempt material ................................................................................................. 56

Making a record of destruction or return of the material .................................................. 56



Case Management Guide

Introduction

One of the key functions of the Office of the Australian Information Commissioner (OAIC) is to provide an oversight function of the operation of the Freedom of Information Act 1982 (the FOI Act). In particular, this includes conducting independent reviews of agencies decisions under the FOI Act, and investigating complaints about the actions of agencies in performing a function or exercising a power under the FOI Act.

This case management guide is provided to assist staff of the OAIC involved in these functions, and is provided to ensure consistent practice in managing these functions. However, this guide is not intended to be a standalone document, and must be read in conjunction with the FOI Act and the FOI Guidelines issued by the Information Commissioner, as well as other policies issued by the OAIC from time to time.



Section One – Registration, Triage and Allocation

Applications for Information Commissioner review (IC review) or complaints will normally come into the FOI compliance team via two ways:

1. Through the Enquiries Team. This will normally be where matters have come in

electronically via e‐mail, or through the OAIC website via one of the SmartForms.

2. Via hard copy mail/Post.

Where matters come in via the Enquiries Team (e‐mail or SmartForm) these will normally be entered into Resolve by the Enquiries Team, and will come to the FOI Compliance team via Resolve. These matters are escalated straight to Triage.

Where matters come to FOI Compliance via hard copy mail, these will need to be registered by the FOI Compliance team and entered into Resolve.

Registration

1. Check that there are no duplicates. Sometimes an applicant may have attempted to send their matter to the OAIC via a number of means – hard copy letter, e‐mail, and website. This may result in multiple entries.

Click on the Find Client tab in Resolve. Enter the client’s details to generate a search.

You can also go to File to search for a person.

If there are more than one record for the client, ensure that it is not for the same matter. If there are any duplicate entries for the same matter, you will need to deregister any duplicate entries.

If you identify that the matter is already in resolve, you can move it directly to Triage.

2. If the individual or entity is already registered in Resolve you will be able to click on them, and update their details, before moving to step 5.

3. If the individual or entity is not in Resolve, click on the New Client tab which is located on the left of the Find Client screen. This will bring up the New Client screen.

4. Choose the client group from the drop down (Individual; Organisation; Agency; or Ministerial Portfolio), and enter as much information as possible based on the correspondence and information provided. You will then need to save this person as a new client by clicking the Save button at the top of the screen.

5. If the client is already in resolve, you can click on the Related Cases tab to see if there are any other cases that may be related to the current application, or may be duplicates.



6. You will then need to click on the New Case tab and select the case type. FOI Compliance has four case types to choose from. You should generally only need to use three in your day to day activities. These should be chosen subject to the following criteria: ‐ Complaint if the applicant is writing about process issues/delay/customer service/lost correspondence in relation to an FOI application; the disclosure log or an agency’s Information Publication Scheme; or the delegation or authority of the person who made the decision (s 70).

‐ IC Request if the applicant is an agency advising that the applicant has agreed to an Extension of Time (s 15AA); an agency requesting an Extension of Time to make a primary decision on an FOI application before the initial period of time has expired, due to a matter being complex of voluminous (s 15AB); an FOI application is considered to be a deemed refusal because the initial decision period (usually 30 days) has expired and no decision has been made in relation to the FOI application, and no notice has been provided to the applicant, and the agency applies for an Extension of Time (s 15AC); an agency has applied for an Extension of Time to carry out an internal review of an original decision, and the initial period (usually 30 days) for the internal review has expired (s 54D).

‐ IC Review if an agency decides an FOI applicant cannot have any or all documents requested, or only part of a document, and the applicant is seeking a review of that decision (s 54L – Access refusal); or an agency has agreed to provide an applicant with documents about a third party, and the third party objects to the release of that information (s 54M – Access grant).

‐ Vexatious Applicants if an agency or Minister applies for the Information Commissioner to make a declaration that a person is a vexatious applicant under s 89K.

7. Enter as much case detail as you can – including: ‐ Respondent details (remember to click on the Find tab under Respondent Details) ‐ Agency reference number ‐ Received date ‐ How received ‐ Input any documents and attach to the Resolve record.

8. The matter can now be moved to the Triage stage. Complete the relevant action item to record case details and attach documents and move to Triage.



FOI Registration Workflow:

Check for duplicates by clicking on Find Client or File and generating a search. If the client and case are already in Resolve

move to Triage

If the client (individual or entity) is already in Resolve,

move to step 5.

If the client (individual or entity) is not in Resolve click

New Client

Complete action items to move to Triage

Enter as much case detail as you can – then save!

Enter client information and click Save

Click on the New Case tab and choose an FOI Compliance case type

Click on Related Cases to search for duplicates or other related matters



Triage

The Triage process is not an ‘actioning’ stage in responding to FOI Compliance matters. Instead, the Triage process is intended to ensure the validity, accuracy, and quality of registered matters entered into Resolve as part of the Registration process (whether via the Enquiries team or directly by FOI Compliance). The Triage process is designed to assist the timely processing of FOI matters by ensuring all key information is available to action officers and entered into Resolve; and to meet applicant expectations by advising them of the receipt of their application within a short time frame.

All FOI Compliance matters should be triaged before moving to the next stage, with the exception of s 15AA (Extension of time with agreement) and s 15AB (Extension of time for complex of voluminous requests) matters. Due to the time sensitive nature of these matters they are to be allocated to an action officer as soon as practicable and actioned accordingly. The Triage action officer will allocate All EOT applications to action officers ASAP, but with a focus on s 15AA and s 15AB matters.

To process matters through the Triage stage, the Triage officers should:

1. Choose a file in Resolve from the Triage list (normally by date, choosing from the oldest file) and allocate the case to yourself by clicking on the Case Officer tab and selecting yourself as the case officer. You can also complete the action item ‘Allocate to Triage Officer’.

2. Review the case type (eg: Complaint; IC Review; IC Request) to ensure the correct case type has been identified. If the correct case type has not been selected, click on New Case for the applicant and create a new case and transfer all documents. Ensure you make a note in document properties that the case was originally registered incorrectly. Then close or deregister the incorrectly registered case. NOTE: if the applicant has lodged a complaint, when the matter would be better dealt with as an IC review, you may need to write to the applicant requesting them withdraw their complaint and agree to opening an IC review (see point 9 below).

3. Check applicant and respondent details in Resolve are correct by checking all available documents and correspondence. Where the Resolve record does not include appropriate respondent details, try to ascertain this by checking the Agency FOI contact details (from Resolve or Agency website), or for an individual attempt to ascertain these by contacting the applicant where contact details such as telephone or e‐mail are provided. If you are unable to ascertain correct contact details the matter may be invalid. If considered invalid for this reason, make a note in document properties and refer to Mail Assessor with an appropriate recommendation. For a complaint to be valid it must meet the requirements of s 70 of the FOI Act. If the complaint is about an issue that is not related to an action taken by an



agency in the performance of functions, or the exercise of powers under the FOI Act, then the matter is not a valid complaint, and a CP Template ‐ s 70 invalid letter should be completed. Discuss and clear with your EL1 before sending. If the matter is invalid, attach a copy of the signed letter to Resolve and finalise the record by updating issue and outcome and clicking on close.

For an IC review to be valid it must meet the requirements of s 54N of the FOI Act. If the IC review application does not include a copy of the s 26 notice by the agency then the matter is invalid. Applicants should be requested to provide a copy of this notice in the Triage stage and allowed 14 days to provide. Do this by sending a s 54N Invalid Letter (no. 1). This should be discussed and cleared with your EL1 before sending. If not provided, a s 54N invalid letter (no. 2) should be completed. Once sent, attach a copy of the signed letter to Resolve and finalise the record by updating issue and outcome and clicking on close.

4. If contact details are correct, cross reference any relevant FOI cases by searching against the applicant. Enter the case number for any related cases by clicking on the XRefs tab.

5. Enter relevant case details for the case type – eg: details of Complaint; details of the IC Request (EOT); details of the IC Review. Include key details such as dates, decisions, etc. Check and/or update all key data fields ‐ eg: ‐ Request type (Review/EOT type) ‐ Applicant type/request from ‐ Sub type ‐ When and how received ‐ Sensitivities (member of Parliament/media/hot issue – escalate directly to Mail Assessor) ‐ Respondent details (including contact) ‐ Agency reference number ‐ Case stage ‐ Valid/invalid.

6. Check timeframes to ensure matter is correctly categorised. For EOT – within 30 days by agreement with applicant (s 15AA); within 30 days for complex of voluminous (s 15AB); outside of 30 days (s 15AC); outside 30 days after internal review request (s 54D); IC Review – Access Refusal decision ‐ within 60 days after the day notice of the decision was given (s 54S (1)); Access Grant decision ‐ within 30 days on decision of internal review (s 54S (2)(a)), or within 30 days after notice given to the affected third party (s 54S (2)(b)).

7. If the matter is outside of the time for the matter applied for, consider changing the categorisation of the matter if possible. For example, a s 15AA or s 15AB application that is applied for outside of the initial processing period (normally 30 days) would need to be re categorised as a s 15AC EOT application by the agency or minister. For IC Reviews where an application is not filed within the requisite timeframe, an applicant can be invited to file a s 54T application for an extension of time. This will require you as the Triage officer to open a separate s54T request



and cross reference to the original IC review application. If the EOT is granted, then the original IC review application can be reopened. If the EOT is not granted, then the original IC review will need to be closed as ‘invalid’.

8. Ensure there are copies of all relevant documents – such as decisions, letters, etc – attached to the Resolve record. What documentation should be included will depend on the case type (IC Review; IC Request (EOT); or Complaint). Where these have not been provided, you will need to request a full copy of any relevant documents (decisions, letters, attachments, schedule, etc). Input any records and attach to the Resolve record.

9. For Complaints and IC reviews generate Triage Acknowledgement Letters in Resolve. For Complaints and IC reviews, an acknowledgement letter should be sent to the FOI applicant and the Agency from the Triage stage. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached. (Note: no acknowledgement letter is require to be sent from the Triage stage for EOT applications).

If a complaint is about a substantive decision (eg: seeking a review of exemptions applied), rather than about the above issues, then it should be re‐categorised as an Information Commissioner review (IC review). In such circumstances, the Acknowledgement Letter should invite the applicant to consider withdrawing their complaint, and having their matter dealt with as an IC review.

10. Record any communications or requests for further information from the applicant in the Action tab as relevant action type – ie: decision/ schedule/ correspondence requested from applicant/agency when/by.

11. Complaints and IC reviews can now be moved to the Mail Assessor stage by completing the relevant action items and saving all changes. Alternatively you can click on the Move File tab and selecting Mail Assessor.

12. Ss 15AC and 54D EOT applications, once through Triage can be allocated directly to an action officer.

Where a matter is identified in the Triage stage as complex and/or highly sensitive, the Triage case officer should consider discussing with the relevant EL1 supervisor possible escalation directly to the Mail Assessor stage.



FOI Triage Workflow:

Choose a file from the Triage list and reallocate to yourself

Review case type. If correct, move to step 3.

If the case type is not correct, click on New Case to create a new case. Move documents.

Escalate to Mail Assessor

Enter relevant case details for the case type.

Close and de‐register wrong case. Make note in document

properties.

Search and cross reference related cases by clicking XRefs tab.

Check applicant details and validity. If unable to correct, consider whether it is invalid and should be moved to Mail

Assessor. For Complaints and IC reviews ‐ must be valid under s 70 or s 54N

Check timeframes to ensure the matter is correctly categorised.

If the matter is out of time change category/invite EOT if

possible.

Ensure copies of all relevant documents are attached in Resolve.

Request copies of documents if required.

Generate Acknowledgement Letter in Resolve (for IC reviews and complaints).

Record any communications or requests in the Action tab

Complete action items to move to Mail Assessor (for Complaints and IC reviews).

s 15AA or s 15AB EOT – allocate directly to action officer

Complex

or

Sensitive

Invalid – draft closing letters

S 15AC and s 54D matters allocated directly to action

officers



Mail Assessor and Allocation

Once applications for IC review or Complaints have moved through the Triage stage, they are moved onto the Mail Assessor stage. The Mail Assessor stage is both an escalation point to identify complex or more difficult issues, and an opportunity for early assessment to identify key issues within a Complaint or IC review application.

The Mail Assessor stage is usually undertaken by a senior FOI Compliance officer at the EL2 level or higher. Most matters that move through this stage will then be moved into the Allocation stage to await allocation to an action officer once available. More complex or difficult matters may be escalated early on.

Once matters are moved into the Allocation stage, there is an opportunity to seek further information and documents from applicants. The Allocation – applicant request for more information template may be used during this stage to request copies of key documents relevant to the complaint or application for IC review where these have not already been provided.

Obtaining such information and copies of key documents during the period between the matter being allocated to a specific case officer may significantly reduce the time required to process the Complaint or IC review once the matter is allocated.



Section Two – Extensions of Time

The Extensions of Time stage is the first ‘actioning’ stage in the FOI Compliance case management process. The intention of this stage is to:

Ensure all matters are allocated to an action officer in as short a time as possible

Allow early and timely action on time sensitive matters (eg: s 15AA and s 15AB matters)

Support agencies to fulfil their obligations in responding to requests for access to documents under the FOI Act.

Section 15AA – Extension of time with agreement

Section 15AA matters are where an agency or Minister has agreed with the applicant to extended the initial period available to them to make a decision on an FOI application. The key criteria to s 15AA matters are that:

The applicant must agree in writing The additional period cannot be for more than 30 days The EOT must be within the original 30 day period for decision The agency or Minister must give written notice of the EOT to the Information

Commissioner as soon as practicable.

Section 15AA matters should be relatively straight forward and, due to their time sensitive nature, must be actioned as a matter of priority. In managing s15AA requests, action officers should:

1. Select a s 15AA file in Resolve from the Allocation list and allocate the case to yourself by clicking on the Case Officer tab and selecting yourself as the case officer.

2. Ensure the quality assurance checks as per the Triage stage are carried out. In particular; ‐ Requestor contact details are correct and up to date ‐ The matter has been properly categorised with the correct case type ‐ Search and cross reference any relevant cases using the XRefs tab ‐ Check all relevant case details for the case type have been entered in Resolve ‐ Check timeframes to ensure the matter has been appropriately managed and categorised. If outside of time it may need to be managed as a s15AC ‐ FOI Request and EOT dates correctly entered ‐ Case stage is correct ‐ All relevant documents are attached to the Resolve record.

3. As s 15AA applications require written notification from agencies or Ministers and agreement from applicants, check that: ‐ The application includes an appropriate written notification of the EOT from the agency or Minister, and ‐ Includes a copy of the agreement from the applicant (in writing) to the EOT.



4. If any of the above documents are missing, contact the requesting agency (go

through relevant FOI officers in the agency for Ministers) to ask for additional information and copies of any missing documents.

5. Record any communications or requests for further information from the advising agency in the Action tab as relevant action type – ie: decision/schedule/correspondence requested from agency when/by. Attach any correspondence (e‐mails/letters) as documents in Resolve.

6. If you are satisfied with all the information provided, you should be ready to make a decision. Where: ‐ Written notice has been provided of an EOT by an agency or Minister ‐ An applicant has agreed in writing to the extension ‐ The EOT is no more than 30 days beyond the original decision period ‐ The agreement to the EOT was made within the original decision period. Then the decision will generally be to acknowledge the EOT via letter. If any of the above issues are not addressed, alternative approaches should be discussed with the relevant EL1 in the first instance.

7. Generate Acknowledgement Letter (EOT) s 15AA to Agency in Resolve to let them know we have received their s 15AA notice. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached.

8. The matter can now be closed by saving all changes, recording issue and outcome, and finalise all action items to close the EOT request.



Section 15AA Workflow:

Ensure quality assurance checks are carried out.

Accept notification, and generate Acknowledgement Letter (EOT) s 15AA in

Resolve.

Select a s 15AA file from the Allocation list

If any concerns about matter escalate to EL1 in the first

instance.

Record any communications or requests for further information in the Action tab in

Resolve and await responses

Contact agency if any documents are missing

Ensure application includes written notice from agency/Minister and copy of

applicants agreement to EOT

If outside of time consider asking agency to apply for a

s 15AC

The matter can now be closed by clicking on the Close IC Request tab.

If agreed by agency, open separate s 15AC request and cross reference. Close s 15AA



Section 15AB – Extension of time for complex or voluminous requests

Section 15AB of the FOI Act allows an agency or Minister to apply to the Information Commissioner (IC) for an EOT, where they consider the initial period insufficient to deal with an FOI request because the request is complex or voluminous.

Under s 15AB (2) the Information Commissioner may extend the initial period by 30 days, or longer, by written instrument, where the Information Commissioner considers the application justified. Key issues in considering such a request will be:

The length of extension sought – is it less than, or greater than, 30 days The justifications provided by the agency on why they consider the matter

complex or voluminous The nature and scope of the FOI Request Views of the applicant in relation to an EOT The likelihood that the agency will make a decision within the extended period of

time or the matter will become a deemed refusal (s 15AC).

When applying for a s 15AB EOT agencies should be encouraged to seek an EOT for the full amount of time required to process the FOI request, and to be realistic about their EOT applications. Agencies should be discouraged from having to apply for multiple EOT. Where a long EOT is required, agencies may be able to provide a staged release of documents or decision. However, in certain circumstances, agencies may request an EOT to scope a request. Such an application should clearly identify if it is for scoping only, and the agency will need to make a further EOT to complete the FOI request, or undertake a practical refusal consultation under s 24AB, following the scoping exercise.

Agency applications should provide measurable/quantifiable explanations and justifications as to why a matter is either complex or voluminous, why the required EOT is needed, and how they will ensure a decision is made within the EOT. This information should be provided up front, with minimal need to request additional information from an agency. Examples of the types of information provided by agencies where s 15AB EOTs have been granted include:

An explanation of activities taken in processing the FOI request as at the date of application for the EOT. This type of information is useful in assessing whether the request has been appropriately managed. This should include when the matter was received and any EOTs already granted by agreement (15AA) or by the agency/Minister (eg: 15(6) or (7)).

The number of documents and folios identified, or an approximation where scoping work is continuing.

An explanation of the type of documents located (eg: reports, briefings, investigation files, etc) and key exemptions identified. These issues quite often go to complexity of a matter. Such information can be based on a sample for large requests.

An outline of activities to be undertaken within the EOT to deliver a decision on the FOI request – eg:



‐ Estimate of time to assess documents and to undertake redactions (days/weeks) ‐ Estimate of time to retrieve records (eg: where they are old and stored off site)

Sensitivities/complexities that affect time needed – ongoing investigations, etc.

Whether a need to consult third parties has been identified, and how much time is estimated to consult and assess responses.

Agencies should be encouraged to consult and seek the views of applicants on EOTs before applying to the OAIC. Where such consultations have already been undertaken, consideration of the EOT will be much easier for the OAIC. Additionally, applications for EOT will generally be provided to the FOI applicant for their views if the agency has not already consulted, or if the EOT applied for is more than 30 days. The agency resource page on the OAIC website advises agencies to indicate if any material should not be provided to applicants.

In managing s 15AB EOT requests, action officers should:

1. Select a s 15AB matter from the Resolve Allocation list and allocate the case to yourself by clicking on the Case Officer tab and selecting yourself as the case officer. Alternatively the matter may be allocated to you directly by the Triage officer.

2. Ensure the quality assurance checks as per the Triage stage are carried out. In particular: ‐ Agency and respondent contact details are correct and up to date ‐ The matter has been properly categorised with the correct case type ‐ Search and cross reference any relevant cases using the XRefs tab ‐ All relevant case details for the case type have been entered in Resolve ‐ Check timeframes to ensure the matter has been appropriately managed and categorised. If outside of time it may need to be managed as a s 15AC. ‐ FOI Request and EOT dates correctly entered ‐ Case stage is correct ‐ All relevant documents are attached to the Resolve record.

3. Generate Acknowledgement Letter (EOT) s15AB to requesting Agency in Resolve to let them know that we have received their s 15AB application and you are the action officer. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached.

4. Review all relevant documents, identifying key elements of the matter relevant to the s 15AB application – eg justification by agency, scope of FOI request, EOT sought (above or below 30 days), urgency, any indication that the applicant would object (ask agency if they have contacted the applicant for their views about the EOT – and if not why not).

5. If the EOT application: ‐ requests a period of no more than 30 days, and ‐ there are no indications of sensitivities or possible objection to the EOT from the



applicant then consideration should be given to approving the request. Consultation with the applicant may not be required.

6. If the EOT application: ‐ is for a period of more than 30 days, and/or ‐ there are indications of sensitivity or possible objection to the EOT from the applicant then the applicant should be contacted by the action officer for their views about the EOT. This can be via telephone or e‐mail.

7. Record any communications or requests for further information from the advising agency and/or FOI applicant in the Action tab as relevant action type – ie: decision/schedule/correspondence requested from agency when/by. Agencies should provide relevant information to justify their request; however this should not be onerous. If required, consider the need to generate an EOT Applicant Consultation Letter to the FOI applicant seeking their views on the EOT application. This should be generated in Resolve and a copy of the final attached as a document when sent. However, e‐mail or telephone contact is usually preferable due to the time sensitive nature of s 15AB EOT applications.

8. If you are satisfied with all the information provided, you should be ready to make/recommend a decision. ‐ For matters where the EOT requested is under 30 days, these can be approved at the APS5 level or above ‐ For matters where the EOT requested is greater than 30 days, these will need to be approved at the EL1 level or above.

9. If you are recommending NOT approving a s15AB EOT application, or you are considering approving a shorter period than requested by the agency, this must first be discussed with your EL2 (through your EL1).

10. Generate EOT Decision Letter s 15AB to requesting Agency and the FOI applicant in Resolve, advising the requesting agency and the FOI applicant of the OAIC’s decision in relation to the EOT application. s 15AB (3) requires letters advising of the period of the EOT to be provided to both the applicant and Agency or Minister as soon as practicable. Ensure key information in letters is correct (eg: date received, reference number, type of request). Ensure letters are sent and recorded in Resolve/documents attached.




Section 15AB Workflow:

Ensure quality assurance checks are carried out.

Select a s 15AB file from the Allocation list. Alternatively this may be allocated to you by

the Triage officer.

Generate Acknowledgement Letter to Agency in Resolve.

If outside of time consider asking agency to apply for a

s 15AC

If agreed by agency, open separate s 15AC request and cross reference. Close s 15AB

request.

Review all documents to identify key elements of s 15AB matter.

Generate Decision Letters to Agency and FOI applicant in Resolve.

If over 30 days and/or sensitivities or possible objections from FOI applicant

If EOT under 30 days and no issues

Contact FOI applicant for their views on the EOT application

Record any communications or requests in the Actions tab and await responses

Consider generating a EOT Applicant Consultation Letter in Resolve

Decision – Approve – under 30 days APS5/6 Over 30 days EL1

Decision – Not Approve or approve shorter period than applied for. Discuss with

EL1/EL2

Close matter by saving all changes and clicking on Close IC Request tab.



Section 15AC – Decision not made on request within time – deemed refusal

Section 15AC applies where a request for access to documents under the FOI Act:

Has been made to an agency or Minister

The initial period for making a decision on the application has lapsed (usually 30 days unless an EOT applies), and

Notice of the decision has NOT been received by the applicant.

In this situation, the application is deemed to have been refused by the agency or Minister on the last day of the decision period (30 days or last day of any EOT). In this situation, the agency or Minister may apply:

o In writing to the Information Commissioner for an EOT to deal with the request o The Information Commissioner may allow further time considered appropriate for

the agency or Minister to deal with the request, and o If the Information Commissioner allows further time, the Information

Commissioner may impose any conditions considered appropriate.

In considering whether to grant an EOT under s 15AC, action officers should consider:

The EOT sought (ie: less than, or greater than, 30 days) The voluminous or complex nature of the FOI request Any sensitive issues associated with the request (hot issue/members of

parliament) The management of any related cases The views of the applicant The justification for an EOT, and why the need for an EOT was not identified

earlier The likelihood of a decision within the EOT period Whether an EOT has already been granted (see s 15AC (9) re limits on Information

Commissioner ability to grant additional EOT). The ability of applicants to seek Internal Review if a decision is made by the

agency, and the ability of the agency to apply for an EOT for an internal review (s 54D) if required.

When applying for a s 15AC EOT agencies should be encouraged to seek an EOT for the full amount of time required to process the FOI request, and to be realistic about their EOT applications. Agencies should be discouraged from applying for unrealistic EOT, particularly under s 15AC, as under s 15AC (9) the Information Commissioner cannot approve an additional EOT where a decision is not made within the EOT granted.

Under s 15AC (6) the Information Commissioner may impose any conditions considered appropriate to the EOT. Where a long EOT is required, agencies may be able to provide a staged release of documents or decision. This may be set as a condition of the EOT, as well as providing copies of such decisions and schedule of documents to the OAIC.

Agency applications should provide measurable/quantifiable explanations and justifications as to why the matter was not finished in the original time, why the EOT is



needed, and how they will ensure a decision is made within the EOT. This information should be provided up front, with minimal need to request additional information from an agency. Examples of the type of information successful agency EOTs have included:

The number of documents and folio’s identified within the scope of the request

Type of documents and exemptions identified. Quite often this can go to the complexity of the matter, and the time required to process. For large requests this may be based on a sample of documents.

An estimate of time needed to assess the documents and to undertake redactions

An estimate of time taken or required to retrieve records (eg: where they are old and stored off site)

Sensitivities/complexities that affect time needed – ongoing investigations, etc

Reasons why a decision was not made within the original timeframe and the matter become deemed. Of importance is whether the agency has continued to liaise with and explain these issues to the applicant, and

How the decision will be made within the EOT applied for. The OAIC wants to ensure that the agency or Minister has an appropriate plan to make a decision within the EOT.


In managing s 15AC EOT requests, action officers should:

1. Select a s 15AC matter from the Resolve Allocation list and allocate the case to yourself by clicking on the Case Officer tab and selecting yourself as the case officer. Alternatively the matter may be allocated to you directly by the Triage officer.

2. Do a quick check to ensure no changes to key information since the Triage stage. In particular: ‐ Agency and respondent contact details are correct and up to date ‐ The matter has been properly categorised with the correct case type ‐ Relevant cases have been cross referenced using the XRefs tab ‐ All relevant case details for the case type have been entered in Resolve ‐ Timeframes for lodging correctly match the categorisation (note restriction on s 15AC applications under s 15AC (8) and (9)). ‐ FOI Request and EOT dates correctly entered ‐ Case stage is correct ‐All relevant documents are attached to the Resolve record.



3. Check the Action tab to ensure that any further information or documents requested in the Triage stage have been provided. If not, follow up and update the Action list.

4. Generate EOT Case Assessment Letter s 15AC to requesting Agency in Resolve to advise that you are the responsible case officer. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached. Agencies should provide relevant information to justify their request; however this should not be onerous.

5. Review all relevant documents, identifying key elements of the matter relevant to the s 15AC application – eg: EOT sought (above or below 30 days), justification by agency (complex, voluminous, sensitive, why it became deemed, activities undertaken to date), scope of FOI request, any indication that the applicant would object (ask agency if they have contacted the applicant for their views about the EOT – and if not why not), what activities the agency will undertake to ensure a decision is made within the EOT applied for.

6. Consult applicant to seek their views. Generate an EOT Applicant Consultation Letter to the FOI applicant seeking their views on the EOT application, only if the agency hasn’t already done so. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached.

7. Record any communications or requests for further information from the advising agency and/or FOI applicant in the Action tab as relevant action type – ie: decision/schedule/correspondence requested from agency/applicant when/by. Agencies should provide relevant information to justify their request; however this should not be onerous.

8. Once all the information and documents have been provided and are available, you should be ready to recommend a decision. It is generally preferable to grant an EOT under s 15AC where possible where the request for an EOT is reasonable, the effect on the applicant will be minimal (eg: the delay will not jeopardise other proceedings), and it is considered likely that the agency will be able to make a decision within the EOT.

9. Decisions to grant an EOT under s 15AC will need to be approved at the EL1 level. If you are recommending NOT approving a s 15AC EOT application, or not approving the amount of time requested by an agency, this should be discussed with your EL1 in the first instance. The Decision not to approve the EOT will need to be made by the relevant EL2.

10. Importantly, s 15AC (6) allows the Information Commissioner to impose conditions considered appropriate if an EOT is approved. Possible conditions include staged release of documents/decision, and keeping the OAIC advised of



decisions or correspondence with the applicant. Any conditions should be approved/discussed with the relevant EL1 or EL2.

11. Generate EOT Decision Letter s 15AC to requesting Agency and FOI applicant in Resolve. Ensure key information in letter is correct (eg: date received, reference number, type of request). Ensure letter is sent from and recorded in Resolve/documents attached.


Interaction with IC Reviews and Complaints:

Applications for EOT under s 15AC may involve cross interactions with Complaints and IC Review requests from applicants, as s 15AC EOT applications relate to deemed refusals. This means that, between the time a FOI request becomes a deemed refusal, and the agency or minister applies for a s 15AC EOT, the FOI applicant may make a valid request for IC Review or lodge a Complaint about the handling of their FOI application.

Where an application for IC Review has been received by the OAIC, and the agency of minister subsequently makes an s 15AC EOT application, if the EOT is approved, the intention is that the deemed decision remains under the supervision of the OAIC and convert into a review of the actual decision when (or if) made by the agency or Minister.

In such circumstances, a condition of granting the EOT should be that the agency provides a copy of the decision to the OAIC at the same time as the applicant. The issue is then to follow up with the applicant about which, if any, aspects of the decision they disagree with and want to seek review of when (or if) a decision is made.

For complaints, when advising the FOI applicant of the EOT in the EOT Decision letter s 15AC, the complainant should be invited to consider withdrawing their complaint if the EOT will allow the agency or minister to adequately address their issues. If not, the complaint should proceed as normal.



Section 15AC Workflow:

Do checks to ensure no changes to key information since Triage stage.

Check Action tab to ensure any further information or documents requested in Triage have been provided.

If an EOT under s 15AC already granted then application is invalid.

Generate Decline Letter to Agency in Resolve

Review all documents to identify key elements of s 15ACmatter.

Consider possible conditions to impose if approved.

Consult FOI Applicant – generate an EOT Applicant Consultation Letter in Resolve

Record any communications or requests in the Actions taband await responses

Decision – recommend Approve – decision by EL1 Decision – Not Approve. Discuss with EL1/EL2

Generate EOT Decision Letter s 15AC to Agency and applicant in Resolve.

Select a s 15AC file from the Allocation list. Alternatively this may be allocated to you by the Triage officer.

Generate EOT Case Assessment Letter s 15AC to Agency in Resolve.




Section 54D – Internal review – deemed affirmation of original decision

The FOI Act allows applicants who apply for access to FOI documents to seek internal review of a decision by an agency where they have refused access to all or part of a document (s 54 – access refusal). Additionally, the Act allows third parties affected by a decision to allow access to a document to seek an internal review of this decision (s 54A – access grant).

Section 54D applies where:

An application for an internal review (access refusal or access grant) has been made to an agency

The initial decision period for that internal review (30 days) has expired Notice of the decision of the internal review has not been provided to the

applicant.

In this situation, the FOI Act considers that the agency has made the decision to affirm the original decision – either to deny or grant access to a document. Notice of the decision about the internal review is deemed to have been given to the applicant on the last day of the initial processing period (30 days).

The agency may then apply in writing to the Information Commission for an EOT to deal with the internal review, and if approved, the Information Commissioner may impose any conditions considered appropriate.

In considering whether to grant an EOT under s 54D, action officers should consider:

The EOT sought (ie: less than, or greater than, 30 days) The voluminous or complex nature of the internal review Any sensitive issues associated with the review (eg: hot issues/members of

parliament) The views of the applicant The justification for an EOT, and why the need for an EOT was not identified

earlier The likelihood of a decision within the EOT period applied for.

When applying for a s 54D EOT agencies should be encouraged to seek an EOT for the full amount of time required to process the internal review, and to be realistic about their EOT applications. Agencies should be discouraged from applying for unrealistic EOT, particularly under s 54D, as under s 54D (8) the Information Commissioner cannot approve an additional EOT where a decision is not made within the EOT granted.

Under s 54D (5) the Information Commissioner may impose any conditions considered appropriate to the EOT. Where a long EOT is required, agencies may be able to provide a staged release of documents or decision. This may be set as a condition of the EOT, as well as providing copies of such decisions and schedule of documents to the OAIC.

Agency applications should provide measurable/quantifiable explanations and justifications as to why the internal review was not finished in the original time, why the



EOT is needed, and how they will ensure a decision is made within the EOT. This information should be provided up front, with minimal need to request additional information from an agency. Type of information includes:

Number of documents and folio’s identified

Type of documents and exemptions (or a sample)

Estimate of time to assess documents and to undertake redactions

Estimate of time to retrieve records (eg: where they are old and stored off site)

Sensitivities/complexities that affect time needed – ongoing investigations, etc

Actions taken to date, including reasons why a decision was not made and the internal review become deemed, and

How the decision will be made within the EOT applied for.


In managing s 54D requests, action officers should:

1. Select a s 54D matter from the Resolve Allocation list and allocate the case to yourself by clicking on the Case Officer tab and selecting yourself as the case officer. Alternatively the matter may be allocated to you directly by the Triage officer.

2. Do a quick check to ensure no changes to key information since the Triage stage. In particular: ‐ Agency and respondent contact details are correct and up to date ‐ The matter has been properly categorised with the correct case type ‐ Relevant cases have been cross referenced using the XRefs tab ‐ All relevant case details for the case type have been entered in Resolve ‐ Timeframes for lodging correctly match the categorisation ‐ FOI Request and EOT dates correctly entered ‐ Case stage is correct ‐ All relevant documents are attached to the Resolve record.

3. Check the Action tab to ensure that any further information or documents requested in the Triage stage have been provided. If not, follow up and update the Action list.

4. Generate EOT Case Assessment Letter s 54D to requesting Agency in Resolve to advise that you are now the case officer. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached.



5. Review all relevant documents, identifying key elements of the matter relevant to

the s 54D application – eg: EOT sought (above or below 30 days), justification by agency (complex, voluminous, sensitive, why it became deemed), scope of FOI request, any indication that the applicant would object (ask agency if they have contacted the applicant for their views about the EOT – and if not why not). Agencies should provide relevant information to justify their request; however this should not be onerous.

6. Consult applicant to seek their views. Generate an EOT Applicant Consultation Letter to the internal review applicant seeking their views on the EOT application. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/document attached. Attach a copy of the agency’s application to the letter (unless the agency has requested not to).

7. Record any communications or requests for further information from the advising agency and/or internal review applicant in the Action tab as relevant action type – ie: decision/schedule/correspondence requested from agency/applicant when/by. Agencies should provide relevant information to justify their request; however this should not be onerous.

8. Once all the information and documents have been provided and are available, you should be ready to recommend a decision. It is generally preferable to grant an EOT under s 54D where possible where the request for an EOT is reasonable, the effect on the applicant will be minimal (eg: the delay will not jeopardise other proceedings), and it is deemed likely that the agency will be able to make a decision within the EOT.

9. Decisions to grant an EOT under s 54D will need to be approved at the EL1 level. If you are recommending NOT approving a s 54D EOT application, or not approving the amount of time requested by an agency, this should be discussed with your EL1 in the first instance. The Decision not to approve the EOT will need to be made by the relevant EL2.

10. Importantly, s 54D (5) allows the Information Commissioner to impose any conditions considered appropriate if an EOT is approved. Possible conditions include staged release of documents/decision, and keeping the OAIC advised of decisions or correspondence with the applicant. Any conditions should be approved/discussed with the relevant EL1 or EL2.

11. Generate EOT Decision Letter s 54D to requesting Agency and FOI applicant in Resolve. Ensure key information in letter is correct (eg: date received, reference number, type of request). Ensure letter is sent and recorded in Resolve/document attached.




Interaction with IC Reviews and Complaints:

Applications for EOT under s 54D may involve cross interactions with Complaints and IC Review requests from applicants, as s 54D EOT applications relate to deemed refusals of an internal review. This means that, between the time an internal review becomes an deemed refusal (confirming the original decision), and the agency or minister applies for a s 54D EOT, the FOI applicant may make a valid request for IC Review or lodge a Complaint about the handling of their FOI application.

Where an application for IC Review has been received by the OAIC, and the agency of minister subsequently makes an s 54D EOT application, if the EOT is approved, the intention is that the deemed decision remains under the supervision of the OAIC and convert into a review of the actual decision when (or if) made by the agency or Minister.

In such circumstances, a condition of granting the EOT should be that the agency provides a copy of the decision to the OAIC at the same time as the applicant. The issue is then to follow up with the applicant about which, if any, aspects of the decision they disagree with and want to seek review of when (or if) a decision is made.

For complaints, when advising the FOI applicant of the EOT in the EOT Decision letter s 54D, the complainant should be invited to consider withdrawing their complaint if the EOT will allow the agency or minister to adequately address their issues (draft text is available in the letter template). If not, the complaint should proceed as normal.



Section 54D Workflow:

Do checks to ensure no changes to key information since Triage stage.


Select a s 54D file from the Allocation list. Alternatively this may be allocated to you by the Triage officer.

Review all documents to identify key elements of s 54Dmatter.

Consider possible conditions to impose if approved.

Consult FOI Applicant – generate an EOT Applicant Consultation Letter in Resolve

Record any communications or requests in the Actions taband await responses

Decision – recommend Approve – decision by EL1 Decision – Not Approve. Discuss with EL1/EL2

Generate EOT Decision Letter s 54D to Agency and applicant in Resolve.


Generate EOT Case Assessment Letter s 54D to Agency in Resolve.



Section Three –Assessment and Investigation

The Assessment and Investigation stage in the FOI Compliance case management process is intended to allow:

Early assessment and follow up with applicants, respondents, and third parties to ensure availability of all relevant material to the OAIC

Early investigation and informal resolution where possible

Early identification of difficult/complex matters for escalation

Preparing of matters for decision by the Information Commissioner.

Allocation of Complaints and IC reviews

Most matters will generally be allocated based on date of application to the OAIC. However, certain categories of matters may be given priority. This includes:

Charges decisions

Access Grant applications under s 54M

Complaints

Matters involving members of Parliament

Decisions on whether to give certain matters priority will normally be made by the Assistant Commissioner Dispute Resolution.

Information Commissioner Investigations – Complaints

Section 70 of the FOI Act allows for the making of complaints about the performance of an agency in exercising functions, or the exercise of powers, under the FOI Act. Importantly, any complaint must:

Be in writing; Be a complaint about an action taken by an agency in the performance of

functions, or the exercise of powers, under the FOI Act; and Identify the agency (the respondent agency) in respect of which the complaint is

made.

Additionally, s 70 (3) provides that the OAIC must provide appropriate assistance to a person who wishes to make a complaint, and requires assistance to formulate the complaint. Such assistance will generally include:

Explaining the extent of the OAICs jurisdiction

Seeking further information to verify jurisdiction and the issues relevant to the complaint

Requesting copies of documents relied on by the complainant when making their complaint.



Complaints have generally raised the following issues:

Agency processes and delays in managing an FOI application (eg: not acknowledging requests; not providing adequate reasons or explanations)

Information on an agency’s disclosure log, or about the Information Publication Scheme

The authority or delegation of the decision maker in relation to an FOI application

Cases will generally be allocated directly to individual officers by their manager. In responding to an FOI Complaint, action officers will need to:

1. Do a quick check to ensure no changes to key information since the Triage stage. In particular: ‐ the complainant (or their representative) and respondent agency contact details are correct and up to date ‐ The matter has been properly categorised with the correct case type and complaint sub type ‐ Relevant cases have been cross referenced using the XRefs tab ‐ All relevant complaint details for the case type have been entered in Resolve ‐ Case summary details are correct and up to date ‐ Agency FOI Stage correctly entered ‐ Case stage correctly entered ‐ All relevant documents are attached to the Resolve record ‐ Check validity under s 70. For a complaint to be valid it must meet the requirements of s 70 of the FOI Act. Validity should have been identified in Triage, but this should be rechecked once the matter is assigned to a case officer. If the complaint is about an issue that is not related to an action taken by an agency in the performance of functions, or the exercise of powers under the FOI Act, then the matter is not a valid complaint, and a CP Template ‐ s 70 invalid letter should be completed. This can be signed by an EL2 or above. If the matter is invalid, attach a copy of the signed letter to Resolve and finalise the record by updating issue and outcome and clicking on close.

2. If the matter is valid, check the Action tab to ensure that any further information or documents requested in the Triage stage have been provided. If not, follow up and update the Action list.

3. Generate a CP Template – Complaint Case Assessment Letter to the complainant and the respondent agency in Resolve. This letter advises the complainant and the respondent agency that the complaint has been allocated to a case officer for action, and may also be utilised to request further information about the respondent agency’s early view on the complaint. Ensure key information in letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached.



4. Review all relevant documents, identifying key elements of the matter relevant to the complaint application in relation to the FOI Act – eg: Is the complaint about process/delay, disclosure log, IPS, or the delegation of the decision maker. Is the substance of the complaint clear? Is further information required? Update the case summary details in Resolve. Is the path identified in Mail Assessor correct?

5. Decision point – Early Assessment: Section 73 of the FOI Act allows the Information Commissioner discretion not to investigate a complaint if: The complaint is in relation to a matter or action taken by an agency that is

not related to the FOI Act The complainant had a right of review (to the agency, the Information

Commissioner, a court, tribunal or other body) and the complainant has not (or did not) exercise the right to review, and it would have been reasonable to do so

The complainant has complained to the respondent agency and the agency has dealt, or is dealing, adequately with the complaint, or has not yet had an opportunity to deal with the complaint

The complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith

The complainant does not have sufficient interest in the subject matter of the complaint.

Based on the available information, you may consider that the complaint meets one or more of the above criteria. If so, discuss with your EL1 whether the matter could be dealt with now by declining to investigate the complaint under s 73 of the FOI Act.

If a decision is made to decline, you will need to draft a CP Template ‐ s 73 Investigation Decline Advice Letter in Resolve for the Information Commissioner’s signature. This will generally provide the complainant 14 days to respond showing cause as to why the complaint should be investigated. Once the complainant has responded (provided they do respond), you will need to assess any additional information provided. If further enquiries are needed, move to step 6.

If there is no response, or any additional information provided does not substantially change the earlier assessment that the complaint should be declined under s 73, then the complaint should be discontinued. You will need to draft two CP Template ‐ s 73 Investigation Decline Closure Letters in Resolve. These can be signed at the Assistance Commissioner level or above. As required by s 75 (3) notification of a decision not to investigate, or not continue to investigate, a complaint must be advised in writing to the complainant and the respondent agency. Once these letters are sent, record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent, then move to step 13.

6. If the matter is to progress, then it will move to the Preliminary Inquiry stage. Ensure you update Resolve by clicking on the Stage tab. Identify the key steps



needed to progress the complaint, and enter these into Resolve in the Action tab with completion and response dates. This will include: Analysing and identifying the key issues and scope of the complaint Advising the respondent agency (s 72) and the complainant that the OAIC

is undertaking preliminary enquiries Seeking further information from the respondent agency and the

complainant where required – particularly in relation to the complaint issues, actions/conduct, and scope

Identifying timeframes on responses Identifying timeframe for reassessment of complaint following further

information.

You must update action and follow‐up/response dates regularly to ensure they remain up to date and relevant. Consider the need to develop a case plan. A formal case plan may only be required for more difficult or complex matters. If required, complete the Case Plan template. If completed, this should be attached in Resolve and updated on a regular basis.

7. In the preliminary inquiries stage it is acceptable to request further information from the complainant and the respondent agency via telephone or e‐mail. This may be preferable, as it may assist to expedite matters. If you do telephone, try to follow up in writing via e‐mail (if no e‐mail is known or currently provided ask for one). It is important to provide clear deadlines for reply. Usually in the preliminary inquiries stage two weeks (10 working days) will be sufficient. A template e‐mail is available to assist in providing guidance (CP Complainant Preliminary Inquiries email and CP Respondent Preliminary Inquiries email). Record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent and received.

Depending upon the information already available or provided by the applicant, it may be permissible to move a matter directly to the formal investigation stage. The intent of the preliminary inquiries stage is to allow action officers to clearly identify the issues in the complaint within jurisdiction, seek copies of documents from the complainant or respondent agency, and clarify scope. If such issues are already adequately addressed and clear, there may be little benefit in undertaking preliminary inquiries. If you believe you have all required information and the matter should move straight to formal investigation, discuss with your EL1.

8. Decision point – Preliminary Inquiries: Once you have received responses from the complainant and respondent agency, you will need to review the matter to consider whether the complaint should proceed to formal investigation (s 75) or whether the matter should be discontinued (s 73) – in this regards you will need to again consider the steps outlined at 5 above. Record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent and received.

If a decision is made to discontinue you will need to draft a CP Template ‐ s 73 Investigation Decline Advice Letter in Resolve for the ICs signature. This will



generally provide the complainant 14 days to respond showing cause as to why the complaint should investigated. Once the complainant has responded, you will need to assess any additional information provided. If further enquiries are needed, move to step 9.

If there is no response, or any additional information provided does not substantially change the earlier assessment that the complaint should be declined under s 73, then the complaint should be discontinued. You will need to draft two CP Template ‐ s 73 Investigation Decline Closure Letters in Resolve for the ICs signature. As required by s 75 (3) notification of a decision not to investigate, or not continue to investigate, a complaint must be advised in writing to the complainant and the respondent agency. These letters must be signed by the Information Commissioner or FOI Commissioner. Once these letters are sent, record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent, then move to step 13.

If you are of the view that (1) the matter cannot be discontinued as it does not meet the requirements of s 73, but (2) no further information on the complaint (in the form of documents or submissions) is required to make a decision (eg: the respondent agency has provided sufficient information about the issues in dispute), then the matter should move to the next stage.

9. If the matter is to proceed, then it will move to the Investigation stage – ensure you update Resolve by clicking on the Stage tab. You will need to update the complaint by identifying key steps needed to move the complaint into the formal investigation stage, and entering these into Resolve in the Action tab with completion and response dates. This will include: Identifying the key issues and scope of the complaint following preliminary

inquiries Advising the respondent agency (s 75) that the OAIC will be undertaking a

formal investigation under the FOI Act relating to a complaint CP Template ‐ s 75 Notice to Respondent Agency.

Writing to the respondent agency and complainant seeking written submissions and copies of any documents relevant to the complaint

Identifying timeframes on responses to submissions/requests Providing copies of submissions from respondent agency and complainant

to the other Identifying timeframes for additional responses/submissions. Identifying timeframe for reassessment of complaint following further

information.

You must update associated actions and follow‐up/response dates regularly to ensure they remain up to date and relevant. Record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent and received.

10. Once the matter moves to the formal investigation stage, requests from the respondent agency and complainant for formal submissions and copies of



documents should be sent in writing. Such information from the respondent agency can be requested together with the s 75 Notice. However, you can request further information and formal submissions from the complainant by sending a CP Template – Investigation – Request for further information. Standard timeframes apply for both respondent agencies and complainants to provide written submissions – usually 14 days. If further time is required by either the complainant or respondent agency, this may be requested. Discuss with your EL1 the reasons provided for needing further time and if this is reasonable given the circumstances. Record all actions in the Actions tab in Resolve and attach copies of all documents sent and received.

11. Once submissions are received these should each, as part of natural justice, be provided to the other party – being the complainant and the respondent agency. To expedite matters these can be provided via e‐mail. Ensure you record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent. Again, it is important to provide clear deadlines for response – usually 2 weeks (10 working days) will be sufficient.

12. Decision point – Final Assessment: Once all responses are received, or the timeframes to respond have passed, you will need to consider whether: a. There is no substance to the complaint (ie: the agency has provided

information that indicates the complaint is misconceived or baseless) b. The respondent agency has adequately dealt with/responded to the complaint

(by issuing an apology to the complainant or advising of changes made, etc), or

c. The complaint has raised substantive issues that need to be considered by the Information Commissioner.

Prepare a CP Template ‐ s 86 Investigation Completion Notice for the Information Commissioner. These will need to be cleared through the relevant EL1/EL2. The s 86 notice should address the allegations and the findings of the investigation. Refer to the Suggested Statements of Finding for Section 86 Information Commissioner Complaint Investigations for content.

A copy of the s 86 investigation notice will also need to be sent to the complainant for their information and possible response. Once the s 86 Investigation Completion Notice is signed by the Information Commissioner or FOI Commissioner, complete a CP s 86 consult letter to applicant to provide a copy of the s 86 notice to the complainant. Both the respondent agency and complainant will normally have 14 days to respond to the s 86 notice.

Once any response has been received, you will need to consider if any further action is required. You will then need to draft a CP s 86 closure letter to applicant or agency advising the final outcome. Once sent, the matter can be closed by recording any outcome or actions, saving all changes, and entering an Action of closed.



Complaint Workflow:

Do checks to ensure no changes to key information since Triage stage. Check validity – s 70


Select a Complaint in Resolve that has been allocated to you in Resolve

Review all documents to identify key elements of the Complaint and ensure the matter is properly classified.

Decision Point – Preliminary Inquiries: s 73 – possible decline?

Decision Point – Early Assessment: s 73 – possible decline?

Preliminary Inquiries – Enter Actions into Resolve.

Advise complainant and respondent agency and seek additional information. Review Response/additional

information.

Decline – discuss with EL1/EL2

Investigation – update Case Plan and Action tab. Notify agency (by letter) of investigation (s 75(1)). Seek submissions and provide copies to agency and

complainant.

Decision Point – Final Assessment: Assess all materials received and decide on outcome

Generate Case Assessment Letter to Complainant and respondent agency in Resolve.

Draft Investigation Decline Advice Letter (to Complainant)

Review Response/additional information

Draft Investigation Decline Closure Letter (to Complainant and

Respondent agency)

Draft and send closure letters. Close complaint

Draft IC Investigation Completion Notice Letter (s 86) for Agency. Copy to be provided to Complainant.

Decline – Invalid (s 70)

Early

Resolution

or

withdrawal



Information Commissioner (IC) Reviews

Section 54L (access refusal decisions) and s 54M (access grant decisions) of the FOI Act allows for an application to be made for IC review. Importantly reviewable decisions are:

For s 54L (access refusal decisions);

An access refusal decision (s 53A) A decision made by an agency on internal review of an access refusal decision (s

54C) A decision refusing to allow a further period for making an application for internal

review of an access refusal decision (under s 54B).

For s 54M (access grant decisions);

An access grant decision (s 53B) A decision made by an agency on internal review of an access grant decision

(s 54C)

Additionally, for access refusal decisions, the IC review application can only be made by, or on behalf of, the person who made the original FOI request. For access grant decision, the IC review application may be made by an affected third party who has been consulted by the agency – usually under ss 26A, 26AA, 27 or 27A. In the case of an internal review of an access grant decision, an IC review may be applied for by the person who made the request for internal review.

Importantly, s 54N provides that an IC review application must be in writing, and must include a copy of the notice given under s26 of the IC reviewable decision. Additionally, s 54N (3) provides that the OAIC must provide appropriate assistance to a person who wishes to make an IC review application, and requires assistance to prepare their application.

An IC review application is a request for a review of the merits of the substantive decision of the agency or minister – either to refuse access to documents in whole or in part (access refusal); or to grant access to documents in whole or in part (access grant). If the applicant raises issues about process rather than seeking a review of the merit of the decision, then consideration should be given to re‐categorising the application as a complaint (s 70).

In responding to an application for IC review, action officers will need to:

1. Select an IC Review matter from the Resolve Allocation list and allocate the case to yourself by clicking on the Case Officer tab and selecting yourself as the case officer. Alternatively, a matter may be directly allocated to individual officers by their manager.

2. Do a quick check to ensure no changes to key information since the Triage stage. In particular: ‐ Applicant (or their representative) and respondent agency contact details are



correct and up to date ‐ The matter has been properly categorised with the correct case type and IC review sub type (Access refusal/access grant) ‐ Relevant cases have been cross referenced using the XRefs tab ‐ All relevant IC review details for the case type have been entered in Resolve ‐ Case summary details are correct and up to date (identifying exemptions and issues in dispute) ‐ Agency FOI Stage correctly entered ‐ Case stage correctly entered ‐ Copy of the agency decision has been provided (validity) ‐ All relevant documents are attached to the Resolve record ‐ Check validity – s 54N. For an IC review to be valid it must meet the requirements of s 54N of the FOI Act. If the IC review application does not include a copy of the s 26 notice by the agency then the matter is invalid. Applicants should have been requested to provide a copy of this notice in the Triage stage. If not provided, a s 54N invalid letter (No. 1) should be completed, allowing the applicant 14 days to provide the s 26 decision. If not provided after that, a s 54N invalid letter (No. 2) should be sent. Once sent, attach a copy of the signed letter to Resolve and finalise the record by updating issue and outcome and clicking on close.

3. If the application is valid, move on to check the Action tab to ensure that any further information or documents requested in the Triage stage have been provided. If not, follow up and update the Action list.

4. Review all relevant documents, identifying key elements of the matter relevant to the IC review application in relation to the FOI Act ‐ Access Refusal – which exemptions? ‐ Deemed Refusal – can the agency apply for an EOT under s 15AC? Is the agency actively seeking to make a decision? If so – by when? ‐ Amendment or annotation of personal record (s 48)? ‐ Access grant – government, business or personal? ‐ Charges decision Are the documents/exemptions in dispute clear? Is further information required? Update the case summary details in Resolve. Is the path identified in Mail Assessor correct? Have parties consulted by the agency as part of the original request been advised they are third parties under s 54P? Are there other third parties that we may need to consider joining under s 55A?

5. Decision point – Early Assessment: Section 54W of the FOI Act allows the Information Commissioner discretion not to undertake, or not to continue to undertake, an IC review where: The Information Commissioner is satisfied the application is frivolous,

vexatious, misconceived, lacking in substance or not made in good faith The IC review applicant has failed to cooperate in progressing their

application without reasonable excuse



The Information Commissioner cannot contact the applicant after making reasonable attempts

The interests of the FOI Act make it desirable that the matter be considered by the Administrative Appeals Tribunal

The IC review applicant fails to comply with a direction of the Information Commissioner.

Based on the available information, you may consider that the IC review application meets one or more of the above criteria. If so, discuss with your EL1 whether the matter could be dealt with now by declining to undertake an IC review under s 54W of the FOI Act.

If a decision is made to decline, you will need to draft a s 54W Decline Advice Letter in Resolve. There are different template versions available depending if you are to decline under s 54W(a) (i), (ii), or (iii). This letter, once drafted, can be signed by an EL2 or above. This letter will generally provide the applicant 14 days to respond showing cause as to why the IC review should be continued. Once the applicant has responded (provided they do respond), you will need to assess any additional information provided. If further inquiries are needed, move to step 7.

If there is no response, or any additional information provided does not substantially change the earlier assessment that the IC review application should be declined under s 54W(a), then the application should be discontinued. You will need to draft a s 54W(a) closure letter in Resolve for signature by an EL2 or above. Notification of a decision to decline to undertake an IC review must be in writing to the applicant. An e‐mail to the respondent agency is sufficient. Once the letter to the applicant and e‐mail to the respondent agency have been sent, record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent, then move to step 17.

You may also consider that, due to the number of documents, the complexity of a matter, or public interest reasons, that the IC reviewable decision should be considered by the Administrative Appeals Tribunal (AAT). Sometimes an applicant may request to be allowed to go directly to the AAT.

Where you believe the Information Commissioner should exercise his discretion under s 54W(b) of the Act, the views of the applicant and the respondent agency should be sought. You can do this by drafting a s 54W(b) – intent to decline advice letter to be sent to the applicant and/or the respondent agency. Before doing so, discuss with your EL2, as the letter will need to be signed by an EL2 or above.

Should the applicant or respondent agency not agree to the use of s 54W(b), then the matter will generally continue. However, should they agree, then you can draft a s 54W(b) – closure letter. Again, this will need to be signed by an EL2 or above, due to delegation requirements.



6. If the matter needs to proceed to Preliminary Inquiries stage, then identify the key steps needed to progress the IC review, and entering these into Resolve in the Action tab with completion and response dates. This will include: Analysing and identifying the key issues and scope of the IC review Seeking further information from the respondent agency and the applicant

where required – particularly in relation to the decision made, schedule of documents, exemptions applied, and issues in dispute.

Clarifying scope with the applicant – which documents and which exemptions do they want covered by the IC review? Is there an opportunity to narrow the scope of the dispute/IC review?

Identifying timeframes on responses Any opportunity for a review of the decision by the agency (internal review

or new decision/release of additional documents under s 55G).

It is always preferable to seek an early resolution where possible. If the matter is similar to an existing published decision, you could consider pointing this out to the applicant or respondent agency and providing them with a copy of the existing precedent. This may allow you to indicate that the likely outcome will be the same or similar as one previously made. In this circumstance where the outcome is different than what the applicant is wanting, they should be asked to reconsider their application. Conversely, where the outcome is different than the decision by the agency, the agency should be asked if they will consider making and issuing a new decision under s 55G. (Note: s 55G can only be utilised by agencies after a s 54Z notice has been sent, initiating a formal IC review ‐ see point 11).

Where you are considering relying on a precedent decision to resolve a matter, this should be discussed with your manager or as part of case conferencing.

7. Generate a Preliminary Inquiries letter to applicant and a Preliminary Inquiries letter to respondent in Resolve. These letters advise the IC review applicant and the respondent agency that the IC Review has been allocated to a case officer for action. This letter may also be utilised to request further information from the applicant and respondent agency in the preliminary inquiry space (s 54V). This letter should also request agencies to consider the requirement to notify third parties under s 54P and s 54Q. Agencies must notify affected third parties where a consultation requirement under s 26A (Commonwealth‐State relations); s 26AA (Norfolk Island relations); s 27 (Business documents); and s 27A (documents affecting personal privacy) applies. Any notice provided by the agency to the affected third party must be provided to the OAIC.

Also, for Access Grant applications, the original FOI applicant will need to be joined to the application as an affected party.

8. Ensure key information in the letter is correct (eg: date received, reference number, type of request, any request for further information – by when?). Ensure letter is sent and recorded in Resolve/documents attached



9. In the preliminary inquiries stage it is acceptable to request further information from the applicant and the respondent agency via telephone or e‐mail following the initial letter. This may be preferable, as it may assist to expedite matters. If you do telephone, try to follow up in writing via e‐mail (if no e‐mail is known or currently provided ask for one in the initiating letter). It is important to provide clear deadlines for reply. Usually in the preliminary inquiries stage two weeks (10 working days) will be sufficient. The type of further information requested may be to clarify a response, or seek further information on a particular issue raised. This could relate to the use of exemptions, type and number of documents, schedule, consultations and correspondence between the agency and applicant, and the scope of the request. Record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent and received.

As actions are undertaken, and correspondence sent or received, you must update associated actions and follow‐up/response dates regularly to ensure they remain up to date and relevant.

Additionally, for complex of difficult IC reviews, you should consider the need to develop a formalised Case Plan. If considered necessary, complete the MR Case Plan template. When completed, this should be attached in Resolve as a document and updated on a regular basis.

10. Decision point – Preliminary Inquiries: Once you have received responses from the applicant and respondent agency, you will need to review the matter to consider whether the IC review application should proceed to formal IC review (s 54Z); or whether there are other options to resolve or finalise the matter. This could include deciding that the matter should be discontinued due to lack of substance/misconceived, failure to cooperate, or an inability to contact the applicant ‐ s 54W(a) (in this regards you will need to again consider the steps outlined at 5 above); whether the applicant may be amenable to withdrawing their application; or whether the matter could be conciliated. Record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent and received. Declined/discontinued ‐ s 54W: If you form the view that the matter should be discontinued, you will need to draft a s 54W(a) decline advice letter in Resolve. This can be signed by an EL2 or above. This letter will generally provide the applicant 14 days to respond showing cause as to why the IC review should be continued. Once the applicant has responded (provided they do respond), you will need to assess any additional information provided. If further enquiries are needed, move to step 11.

If there is no response, or any additional information provided does not substantially change the earlier assessment that the IC review application should be declined under s 54W, then the application should be discontinued. You will need to draft a s 54W(a) closure letter in Resolve for signature by an EL2 or



above. Notification of a decision to decline to undertake an IC review must be in writing to the applicant. An e‐mail to the respondent agency is sufficient. Once the letter to the applicant and e‐mail to the respondent agency have been sent, record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent, then move to step 15.

You may also wish to consider the use of s 54W(b) as outlined under point 5 above.

Withdrawal: Quite often an FOI request from an applicant is related to a substantial and ongoing issue with an agency. This may have resulted in a lack of trust from the applicant to the agency. Sometimes applicants may simply be after a second and independent opinion as to the decision given. Based on information gathered in Preliminary Inquiries, if you form the view that the agency made the correct decision, you may be able to explain this to the applicant, and they may be amenable to withdrawing their application. An applicant may also simply not understand how the FOI Act operates, and why or how an agency can rely on exemptions. Again, sometimes this explanation is enough that an applicant does not wish to proceed to formal decision. Where appropriate, it is always worth discussing this with the applicant, as this may be an easier and quicker way to resolve their IC review application.

Conciliation: An important option for resolving a dispute is conciliation between the applicant and the agency. Even in large FOI requests, applicants are sometimes only after particular documents or information. It is thus important within the Preliminary Inquiries to clearly identify scope and what it is applicants are really after. Even where an agency is able to claim an exemption, there is no requirement for them to do so. If you are able to narrow the scope of an applicant’s request, it may be possible to negotiate with the agency to release particular documents under a s 55G decision (note – OAIC must provide a s 54Z notice first) that will satisfy the applicant, after which the matter may be withdrawn. Additionally, where in preliminary view it appears an agency has wrongly claimed exemptions, a negotiated s 55G variation to release more material may satisfy the applicant, or if it does go to decision, the scope of the matter under review is significantly reduced (s 55G(2)(b)).

Escalation to Decision: If you are of the view that (1) the matter cannot be discontinued as it does not meet the requirements of s 54W, but (2) no further information from the applicant or respondent agency (in the form of documents or submissions) is required to make a decision (eg: the respondent agency has provided sufficient information about the issues in dispute), then the matter should be considered for escalation to Decision at this time. In this situation you should update all action items and discuss with your supervisor so that the matter can be considered for movement/escalation and discussion at case conference.

11. If the matter is to proceed formally, then it will move to the IC review stage – ensure you update Resolve by clicking on the Stage tab. You will need to update and identify key steps needed to move the complaint into the formal IC review



stage, and entering these into Resolve in the Action tab with completion and response dates. This will include: Identifying the key issues and scope of the complaint following preliminary

inquiries Advising the respondent agency by notice (s 54Z) that the OAIC will be

undertaking an IC review under the FOI Act – s 54Z Decision to Review Notification Letter to Respondent.

If the IC review is made under s54M (Access Grant) then a notice will also need to be sent to the original FOI applicant as an interested third party – s 54Z(b) Decision to Review Notice to original FOI applicant.

Potentially writing to third parties to invite them to be joined to the IC review. Note – agencies should have already notified third parties under s 54P, but you may now need to invite them to be formally joined.

Seeking advice from the applicant and respondent agency on whether they can clarify scope/issues/exemptions in dispute or are willing to issue/make a revised decision under s 55F or s 55G.

Writing to the IC review applicant and respondent agency seeking written submissions and copies of any documents relevant to the IC review and decision

Identifying timeframes on responses to submissions/requests. Providing copies of submissions from respondent agency and complainant

to the other party. You should advise agencies and applicants that it is the OAIC’s position that submissions will be provided to other parties for comment unless specifically requested not to.

Identifying timeframes for additional responses/comments/submissions. Identifying timeframe for reassessment of IC review following further

information.

You must update associated actions and follow‐up/response dates regularly to ensure they remain up to date and relevant. Record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent and received.

12. Once the matter moves to the formal IC review stage, additional options become open to agencies to consider. In particular, agencies should be advised now that they may wish to consider negotiating or reaching agreement under s55F with the applicant, or that they may set aside, vary, or issue a new decision under s 55G. Such a decision may significantly change the scope of an IC review going forward, or may mean the matter can be withdrawn or discontinued under s54W. Where the agency indicates they are considering issuing a new decision – either on their own under s55G or by agreement with the applicant under s55F – you should consider holding off on seeking written submissions or copies of documents. A new decision may significantly vary the IC review going forward. Importantly, where a s 55G decision is made, s 55G (2)(b) requires that the Information Commissioner must deal with the IC review only on the basis of the revised decision.



13. Once in the formal IC review stage, and the scope of the review is known, request formal written submissions from the respondent agency and applicant. Also consider if you need to request copies of exempt or unredacted documents. Most documents should be able to be produced upon written request. However, occasionally an agency may request a formal notice to produce. Generally this will be under s 55T for agencies or s 55R for individuals (usually applicants). Where an exemption has been claimed under s 33 or s 34, and you believe you need to see the documents, you will need to discuss with the Information Commissioner or FOI Commissioner before drafting a s 55U notice. This should be discussed at case conference with the AC Dispute Resolution prior to doing so. Where a notice to produce is required, complete a Notice to Produce Documents template. This will need to be signed by the AC FOI Compliance. Requests for submissions and documents should be sent in writing. You can usually do this by sending an e‐mail. Standard timeframes apply for both agencies and applicants to provide written submissions – usually 14 days. If further time is required by either the applicant or respondent agency, this may be requested. Discuss with your EL1 the reasons provided for needing further time and if this is reasonable given the circumstances. Agencies and applicants should already be across the issues in relation to the IC review by this stage due to communications undertaken in the preliminary inquiries stage. Record all actions in the Actions tab in Resolve and attach copies of all documents sent and received.

14. Once submissions are received these should each be provided to the other party – usually being the applicant and the respondent agency (although it may include third parties who have been joined to the IC review). To expedite matters these can be provided via e‐mail. Ensure you record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent. Again, it is important to provide clear deadlines for response. Unless the matter is complex of voluminous, usually 2 week (10 working days) will be sufficient for additional comments on the others submissions.

15. Case Appraisal: Once you have copies of documents and have received submissions, you may wish to consider the value of providing the applicant or the respondent agency with a Case Appraisal. A Case Appraisal is an independent assessment of the merits of a matter by someone who is not the ultimate decision maker. However, it is the basis upon which the matter will be recommended to the Information Commissioner or FOI Commissioner, should the matter proceed to formal decision. A Case Appraisal can be a useful tool to provide applicants with a view about the likely outcome of their application based on the current information before the OAIC, and may allow early resolution. Conversely, a Case Appraisal can be used to encourage respondent agencies to consider making a revised s 55G decision where we have formed the view that exemptions have been incorrectly applied to documents.



The decision to utilise a Case Appraisal needs to be a carefully considered option based on a realistic assessment of the likely outcome of doing so. Where a case appraisal is simply likely to result in a delay, and the matter proceeds to decision unchanged, then a case appraisal may not be appropriate. Examples of appropriate circumstances where a case appraisal may be utilised include: Where further information and submissions are required on particular

issues or exemptions Where there is a likely prospect of the decision maker affirming the

agency’s decision – and the applicant is likely to withdraw upon receipt of a formal view from the OAIC

Where there is a likely prospect of the decision maker setting aside the agency’s decision – and the agency is likely to issue a revised s 55G decision upon receipt of a formal view from the OAIC

Where a formal view from the OAIC can reduce the scope of the IC review by agreement with the applicant.

If you believe a Case Appraisal may be warranted in a particular case, discuss with your EL1 and/or EL2 in the first instance. If agreed, then the matter should be discussed at case conference. If it is agreed a Case Appraisal should be undertaken, complete a Case Appraisal Template. A Case Appraisal should generally result in: Where provided to the Applicant: withdrawal or closing under s 54W(a), or the provision of additional submissions before moving to formal decision, Where provided to the Respondent Agency: revised s 55G decision, or the provision of additional submissions before moving to formal decision.

16. Decision point – Final Assessment: Once all responses and copies of any requested documents are received, or the timeframes to respond have passed, you will need to consider whether:

There is no basis for continuing the IC review, and the matter should be discontinued ‐ either under s 54W(a); withdrawal by the applicant; or through conciliation (see step 10 above), or

The matter should proceed to formal Decision.

If a decision is made to decline, you will need to draft a s 54W(a) (i, ii, or iii) Decline Advice Letter in Resolve. This can be signed by an EL2 or above. This letter will generally provide the applicant 14 days to respond showing cause as to why the IC review should be continued. Once the applicant has responded (provided they do respond), you will need to assess any additional information provided.

If there is no response, or any additional information provided does not substantially change the earlier assessment that the IC review application should be declined under s 54W, then the application should be discontinued. You will need to draft a s 54W(a) closure letter in Resolve for signature by an EL2 or



above. Notification of a decision to decline to undertake an IC review must be in writing to the applicant. An e‐mail to the respondent agency is sufficient. Once the letter to the applicant and e‐mail to the respondent agency have been sent, record all actions in the Actions tab in Resolve and attach copies of all documents and correspondence sent.

17. Once any final letter is sent (to the applicant and responding agency) the matter can be closed by recording any outcome or actions, saving all changes, and entering an Action of closed. If the IC review is to be escalated to Decision, record any actions or recommendations as part of the outcome and case plan, save all changes, and draft a DT Transfer Minute for consideration of moving the matter to Decision.

Dealing with s 33 Documents:

Where documents are requested under s 55U relating to a claimed exemption under s 33, if the Information Commissioner is not satisfied as to the exemption claimed, evidence must be requested from the Inspector‐General of Intelligence and Security (IGIS) under s 55ZB. A Memorandum of Understanding (MOU) between the OAIC and the IGIS exists to provide guidance in this situation. Before considering, this must be discussed with the AC Dispute Resolution.

Procedure for Hearings:

At any time during an IC review applicants may also request under s 55B that the Information Commissioner hold a hearing for the purpose of the IC review. Where an applicant requests a hearing, discuss this with your EL2 or the AC, Dispute Resolution Branch, about how to manage such requests. Generally IC reviews will proceed on the basis of documents and submissions, without the need to hold hearings.



IC Review Workflow:

Do checks to ensure no changes to key information since Triage stage. Check validity – s 54N


Select an IC review in Resolve that has been allocated to you in Resolve

Review all documents to identify key elements of the IC review and ensure the matter is properly classified.

Decision Point – Preliminary Inquiries: s 54W(a) – possible decline? Move to formal IC review (s 54Z)

Decision Point – Early Assessment: s 54W – possible decline?

Preliminary Inquiries – Enter Actions into Resolve.

Assess information/documents provided. Review Response/additional information.

Decline – discuss with EL1/EL2

IC Review – update Case Plan and Action tab. Notify agency (by letter) of investigation (s 54Z). Advise of possible use of s 55F or s 55G. Seek submissions and

provide copies to agency and applicant.

Decision Point – Final Assessment: Assess all materials received and decide on outcome

Draft s 54W(a) or (b) Decline Advice Letter (to Applicant/agency)

Review Response/additional information (if any)

Draft s 54W(a) Closure Letter (to Applicant and Respondent agency)

No further documents or submissions required ‐ Escalate to

Decision

If the IC Review is to proceed to decision, provide summary and escalate through case conference.

Decline – Invalid (s 54N)

Early

Resolution

or

withdrawal

Discontinue – s 54W(a). Discuss with EL1/EL2

Generate Preliminary Inquiry Letter to applicant and respondent agency in Resolve. Notify FOI applicant if

access grant.

Case Appraisal. Assess response (if any).



FOI Case Management Templates

Triage Templates

No. Template Description

1 Triage Acknowledgement Letter (CP and IC review)

To be sent at Triage stage for Complaints and IC Review applications.

2 CP Template ‐ S 70 Invalid Letter To be sent for invalid Complaints

3 S 54N Invalid Letter (no. 1) To be sent where a copy of a s 26 decision has not been provided, requesting a copy of the decision.

4 S 54N Invalid Letter (no. 2) Closure letter where s 26 decision has not been provided after request sent.

Allocation Templates


1 Allocation – applicant request for more information

To be sent for matters in allocation where key documents have not yet been provided.

EOT Templates


1 Acknowledgement Letter (EOT) s 15AA

To be sent by action officer for s 15AA matters

2 Acknowledgement Letter (EOT) s 15AB

To be sent by action officer for s 15AB matters

3 EOT Case Assessment Letter s 15AC To be sent by action officers for s 15AC requests.

EOT Case Assessment Letter s 54D To be sent by action officers for s 54D requests.

4 EOT Applicant Consultation Letter To seek applicant views on EOT applications.

5 EOT Decision Letter s 15AB To be sent to both requesting agencies and FOI applicants for s 15AB requests.

6 EOT Decision Letter s 15AC To be sent to both requesting agencies and FOI applicants for s 15AC requests.

7 EOT Decision Letter s 54D To be sent to both requesting agencies and FOI applicants for s 54D requests.



Complaint Templates


1 CP Template – Complaint Case Assessment Letter

To be sent by action officers for Complaints to advise applicant and respondent agency of case allocation.

2 CP Template ‐ s 70 Invalid Letter To be sent for complaints that are invalid.

3 CP Template ‐ s 73 Investigation Decline Advice Letter

To be sent where consideration is being made to decline to undertake or discontinue investigation under s73 – advising complainant and inviting response. Response time normally 14 days.

4 CP Template ‐ s 73 Investigation Decline Closure Letter

To be sent to both complainant and respondent agency advising of decision to decline to undertake or continue investigation.

5 Case Plan To be utilised for managing complaints and IC Reviews

6 CP Complainant Preliminary inquiries email

To be utilised to seek early views/information/documents from applicants.

7 CP Respondent Preliminary Inquiries email

To be utilised to seek early views/information/documents from respondent agencies.

8 CP Template ‐ S 75 Notice to Respondent Agency

Notice to agency under s75 advising complaint moving to formal investigation.

9 CP Template – Investigation – Request for further information

Formal request (once complaint moves to formal investigation) for further information and documents from agency and complainant.

10 CP Template – s 86 Investigation Completion Notice

Notification to respondent agency of outcome of investigation.

11 CP s 86 consult letter to applicant Notification and consultation with complainant about outcome of investigation notice.

12 CP s 86 closure letter to applicant or agency

Letter advising applicant and respondent agency that the investigation is now finalised and closed.

IC Review Templates


1 S 54N Invalid Letter (no. 1) To be sent where a copy of a s 26 decision has not been provided, requesting a copy of the decision or clarifying if there is an IC reviewable decision

2 S 54N Invalid letter (no. 2) Closure letter where s 26 decision has not been provided after request sent, or where there is no IC reviewable



decision.

3 Preliminary Inquiries letter to applicant

To be sent by action officers to advise applicants of case allocation and to seek Preliminary Inquiries information.

4 Preliminary Inquiries letter to respondent

To be sent by action officers to advise respondent agencies of case allocation and to seek Preliminary Inquiries information.

5 S 54W(a)(i) Decline Advice Letter To be sent where consideration is being made to decline to undertake or discontinue an IC review – advising applicant and inviting response. Response time normally 14 days.

6 S 54W(a) (ii) Decline Advice Letter To be sent where consideration is being made to decline to undertake or discontinue an IC review – advising applicant and inviting response. Response time normally 14 days.

7 S 54W(a)(iii) Decline Advice Letter To be sent where consideration is being made to decline to undertake or discontinue an IC review – advising applicant and inviting response. Response time normally 14 days.

8 S 54W(a) closure letter To be sent to both complainant and respondent agency advising of decision to decline to undertake or continue investigation.

9 MR Case Plan To be utilised for managing complaints and IC Reviews

10 S 54W(b) – intent to decline advice letter

To be sent where consideration is given to allowing the applicant to apply to AAT.

11 S 54W(b) – closure letter Closure letter where decision has been made to allow applicant to apply to AAT.

12 S 54Z Decision to Review Notification Letter to Respondent

Notice to agency under s 54Z advising formal IC Review now underway.

13 S 54Z(b) Decision to review Notice to original FOI applicant

Notice to original FOI applicant in an Access Grant matter.

14 Case Appraisal Template To be sent to provide initial Case Appraisal

15 Notice to Produce Documents Formal request for further information and documents from agency (if required).

16 DT transfer minute Summarising Minute when matter is ready for drafting decision.



Exempt Material Guide

Overview

In most IC reviews of agency decisions to refuse access or provide partial access to documents, OAIC will need to obtain unredacted copies of the documents claimed to be exempt (‘exempt material’).

It is the responsibility of all OAIC review officers, in relation to the reviews that they have carriage of, to appropriately

store

keep a record of; and

destroy or return

exempt material.

This guide provides information for review officers about how to handle exempt material. A one‐page summary is provided, followed by detailed guidance.

Summary guide to handling exempt material

Receiving exempt material

1. Exempt material received

This guide applies to all documents subject to a decision under IC review, i.e., the documents an agency claims are exempt.

2. Identify classification

Use highest security classification assigned by agency ('PROTECTED', 'CONFIDENTIAL' or 'SECRET').

If no security classification, exempt material is 'UNCLASSIFIED (Sensitive)'.

3. Count folios

Number of pages in all documents (a double sided page is 2 folios).

Count multimedia files or documents as one folio each.

4. Create Resolve action

Create 'Exempt material' action item for every occasion on which you receive exempt material and fill out 'custom fields'.



Storage of exempt material

Return / destruction of exempt material

The Protective Security Policy Framework

Overview

OAIC is required to apply the Australian Government Protective Security Policy Framework (framework). The framework regulates how information is handled according to its security classification and any ‘dissemination limiting markers’ (DLMs).

The framework identifies four categories of ‘security classified’ documents to which strict rules for handling, storage and dissemination apply:1

PROTECTED: compromise of the information could cause damage to the Australian Government, commercial entities or members of the public.

1 Attorney General’s Department (2011) Information security management guidelines: Australian

Government security classification system, 9‐10.

1. Confirm whether to return or destroy

Documents received electronically: Destroy.

Documents received in hardcopy: Ask agency, using standard words provided in this guide where appropriate.

2. Destroy or return document

If destroying: If hardcopy, shred; if electronic, delete from Resolve according to instructions below.

If returning: Agency responsible for collecting.

3. Record action in Resolve

Record whether the document was returned or destroyed and date. Check documents destroyed against recorded folio numbers.

Electronic (UNCLASSIFIED material only)

1. Save to document tab in Resolve

2. Add text ‘EXEMPT MATERIAL’ to comment field

3. Delete copies from any other information systems (e.g., Microsoft Outlook)

Hardcopy

1. Place in manila or ring binder folder, mark with classification level and review number

2. Place in appropriate storage container (i.e., B‐class for CONFIDENTIAL and SECRET), sorted by review number



CONFIDENTIAL: compromise of the information could cause damage to national security.

SECRET: compromise of the information could cause serious damage to national security, the Australian Government, nationally important economic and commercial interests, or threaten life.

TOP SECRET: compromise of the information could cause exceptionally grave damage to national security.

If a document does not have a classification, it is regarded as UNCLASSIFIED. An UNCLASSIFIED document may nonetheless have a DLM applied, which indicates that the document should have a limited distribution. Documents with DLMs are generally afforded less protection than security classified documents, but are marked to alert officers that the document cannot be freely disseminated. For more information on DLMs see Attorney General’s Department (2011) Information security management guidelines: Australian Government security classification system, 11‐12.

All exempt material is given the DLM ‘Sensitive’, which applies to information whose disclosure is limited or prohibited under legislation.2

What classification applies to exempt material in a review?

The agency that created a document (the ‘originator’) is responsible for assigning a security classification to the document.3 The originator is required to mark classified documents with their classification. OAIC does not decide whether exempt material is security classified; rather, it defers to the judgment of the originator.4 Note that a document that is claimed to be exempt under section 33 or any other exemption is not necessarily security classified. The classification is determined by the originating agency, and should always be clearly marked on the document by that agency.5

If exempt material has not had a security classification provided by the agency, it is regarded as ‘UNCLASSIFIED (Sensitive)’.

Exempt material for a particular review should, except in exceptional cases, be stored on a single physical file (or if it is electronic, within the relevant case document collection on Resolve). The entire file of exempt material is classified at the highest classification of any document contained on it.

OAIC can store exempt material classified up to and including PROTECTED in the Sydney office, and up to SECRET in the Canberra office.

OAIC does not have facilities to store TOP SECRET information. In the unusual event that OAIC is required to consider exempt material that an agency claims is TOP SECRET, the

2 OAIC’s use of exempt material is regulated by the Freedom of Information Act 1982 (Cth), ss 55S, 55T. 3 Attorney General’s Department (2011) Information security management guidelines: Australian

Government security classification system, 5. 4 Of course, OAIC will sometimes make a decision that a document to which a security classification has

been applied can be released under FOI by way of a decision under s 55K of the FOI Act. 5 In the case of hard‐copy documents, in bold capital letters at the top and bottom of every page.



information will need to be inspected on agency premises by OAIC, or brought to OAIC for inspection by the agency and then returned immediately to the agency premises for storage.

Storage of exempt material

Hardcopy or electronic?

OAIC’s information systems are not accredited to hold information that is security classified as PROTECTED or above. Agencies should not transmit this information to OAIC by email, and classified emails should be rejected by our mail server. However, if a document is inadvertently transmitted to OAIC by an agency by email, the classified document must be transformed into hardcopy, the electronic version deleted, and the hardcopy version stored appropriately.

Information classified as PROTECTED or above must only be held in hardcopy by officers with the appropriate security clearance, and must be stored in accordance with the guidance below.

Case officers should request that information that is not security classified be provided electronically.

Storage of hardcopy exempt material

All hardcopy exempt material must be locked in a C class container. Both Canberra and Sydney have dedicated C class storage containers for all exempt material that is not security classified or is classified as PROTECTED. These containers should only be accessed by officers with a baseline security clearance.

CONFIDENTIAL and SECRET information must be stored in a B class container and can only be accessed by officers with a Negative Vetting 1 or higher security clearance. This material can currently be stored in the Canberra office.

When exempt material is received, a record should be created (see ‘Keeping a record of exempt material’ below).

If received in hardcopy, the material should be placed on a manila or ring binder folder, and stored in the relevant container. The folder in which the material is stored should clearly be marked with the words ‘EXEMPT MATERIAL’, its security classification (‘PROTECTED’, ‘CONFIDENTIAL’, ‘SECRET’ or ‘UNCLASSIFIED (Sensitive)’), and the relevant case reference number.

Within each container, information must be stored on file hangers in order of its review reference number (e.g., ‘MR12/01234’).

While exempt material is temporarily stored away from one of the designated containers (e.g., in the Commissioner’s office while a decision is being finalised) this should be noted in the comments field of the Resolve record (see below).



Storage of exempt material electronically

Exempt material received electronically should be saved onto Resolve (not RADAR). Once saved onto Resolve, any copies of the exempt material that are held on other information system (e.g., the email received on Microsoft Outlook) should be deleted, as exempt material must be deleted or returned to the agency who provided it at the conclusion of an IC review

When the exempt material is saved to Resolve, the text ‘EXEMPT MATERIAL’ must be included in the comment field relating to the document.

Because electronic copies of exempt material must be deleted at the conclusion of the review, it is desirable to store the material in a separate file from any other information relating to the review (e.g., the email in which the document was enclosed). This allows the material to be deleted at the conclusion of the review without deleting the email, which should be retained as it is an official record which may contain substantive submissions in relation to the review.

Making copies or printouts of exempt material

In limited circumstances, it will be necessary to print out or make copies of exempt material. Circumstances where this may be appropriate include where there are only a small number of documents in issue to be considered by the decision maker amongst a very large volume of exempt material supplied by the agency that would be administratively cumbersome to keep together.

To ensure that these copies are destroyed at the end of the review any copies made by OAIC should be kept and recorded according to the procedures in this guide, as if they were received from an agency, the only difference being that they should be destroyed, not returned.

Keeping records of exempt material in Resolve

Resolve includes an ad‐hoc action item used to record information about exempt material.

As soon as a review officer receives exempt material, either electronically or in hard‐copy, a record must be created in Resolve. This record is created by selecting the ‘Add Action’ item on the ‘All Actions’ tab of the relevant case:

The review officer must then record information about the exempt material by opening the action item and filling out the custom fields included in the action item, which are:



Received date: The date the exempt material was received by OAIC.

Classification: The highest classification of the exempt material, according to the relevant classification (‘UNCLASSIFIED (Sensitive)’, ‘PROTECTED’, ‘CONFIDENTIAL’ or ‘SECRET’).

Location: The location that the information will be stored. If the information will temporarily be stored elsewhere (e.g., in the Commissioner’s office while waiting for the decision to be made) this should be noted in the comments field.

Number of folios: The number of folios6 received, so that this can be checked when the documents are returned or destroyed. If documents without pages are received (electronic versions of emails, electronic files, audio files or video files) count each separate document as one folio. As the number of folios field is free‐text, it is possible to add an explanation of the nature of the documents.

Date destroyed/returned: The date the information is destroyed or returned. This should be left blank for now.

Every time a bundle of exempt material is received from an agency in a review, a new exempt material action item should be created.

Reports can be run on this action item to identify how many bundles of exempt material are held by OAIC, their location, classification and whether it they have been destroyed or returned to the agency.

Destruction and return of exempt material

Destroy or return?

When an IC review is finalised, the review officer with carriage of the matter must return or destroy all exempt material relating to that review.

Section 55T(3) of the FOI Act requires that exempt material be destroyed at the conclusion of a review. In most cases, an agency will have provided a copy of the exempt material to OAIC and would prefer that OAIC destroy that copy, rather than return it.

If exempt material was provided in electronic form, it is not possible to return the information, so officers should proceed to destroy the material. If information was received in hardcopy form, in the absence of any specific instructions from the agency, review officers must ask the agency whether the agency would like the information to be returned or destroyed.

Hardcopy exempt material

In asking whether the agency would like hardcopy exempt material to be returned or destroyed, the following wording is suggested:

6 I.e., number of pages of information, with double sided pages counted as two folios.



As this matter has been finalised, OAIC is required to either destroy or return the exempt material provided by your agency for the purpose of this review (see section 55T).

Would you please advise by [1 week] if you wish OAIC to destroy the [number] folios of exempt material that you provided for the purpose of this review on [date]? If you would prefer OAIC to return these documents to you, please arrange for the documents to be collected from OAIC’s [Canberra/Sydney] offices at [address] by [2 weeks].

If exempt material is held physically and must be destroyed, it should be shredded. If it is to be returned, it should be collected by the agency from OAIC offices. At the discretion of the case officer, OAIC may agree to return the material to the agency rather than having it collected. Security classified documents should not be sent by post.

Electronic exempt material

If exempt material is held electronically and must be destroyed, it is necessary to send an email to an EL1 officer in your team (who have Resolve ‘super user’ privileges) and request that the document be deleted.

Where exempt material has been saved as an attachment to an email from an agency within Resolve, it is important to not delete the email that holds the exempt material, as this is an official record (it may, for example, contain the agency’s submissions for the purpose of the IC review). To delete the attachment that holds the exempt material only, follow these steps:

1. Check out and open the email

2. Right mouse click on the attachment that contains exempt material – select ‘remove attachment’

3. Hit ‘Esc’ button on top left of keyboard

4. Save changes and close the email

5. Check in the document

Making a record of destruction or return of the material

Once the document has been destroyed or returned, open the relevant action item in Resolve, complete the Status field drop‐down box, and insert the date the action was completed in the Date destroyed/returned field.