Last updated 20 April 2019

Appealing a Commonwealth freedom of information decision

The Commonwealth legislation contains extensive provisions about appeal rights. These apply to any person affected by particular decisions of an agency or minister made when dealing with a request. They include:

  • an applicant who has been refused access
  • a third party who, after being consulted by an agency about an access request, objects to an agency’s decision to disclose
  • a person whose request for amendment of personal records was denied (see below)
  • a person who is questioning the decision about the fees and charges to be paid.

An internal review of the initial decision must be conducted by another officer of the agency who is at least as senior as the original decision maker. Under the Freedom of Information Act 1982 (Cth) (Freedom of Information Act), an application for internal review must be in writing and be made within 30 days of notification of the original decision.

External review of Commonwealth freedom of information decisions

Importantly, the Commonwealth legislation allows a person to apply for external review to the Australian Information Commissioner (pt 7 Freedom of Information Act) without having first applied for internal review. Despite being able to go directly to an external review, it is often preferable for a person to seek internal review first as it is quicker than an external review.

External review by the Australian Information Commissioner is a merit review of the original decision. For a fuller discussion on merit review please see the chapter on Complaints about Government – Administrative Law.

An application for external review to the Australian Information Commissioner should be made in writing within 60 days of the notice of decision being given to the applicant (s 54S(1) Freedom of Information Act).

The Administrative Appeals Tribunal (AAT) can review certain decisions made by the Australian Information Commissioner (s 57A Freedom of Information Act). An application to the AAT must be made within 28 days of the Information Commissioner’s decision. Both the Australian Information Commissioner and the AAT can also refer questions of law to the Federal Court of Australia during a merit review. A party to a review also has the right to appeal to the Federal Court of Australia on a question of law from a decision of the Australian Information Commissioner or the AAT.

Making a complaint about the handling of a Commonwealth freedom of information request

The Australian Information Commissioner can deal with complaints about the handling of freedom of information requests. In addition, the Commonwealth Ombudsman may also investigate complaints about agency handling of freedom of information requests.

Appealing a Queensland right to information decision

Similar to the Commonwealth system, Queensland legislation provides appeal rights to applicants regarding their information access request. Appeal rights apply to reviewable decisions. ‘Reviewable decisions’ are defined in sch 5 of the Right to Information Act 2009 (Qld) (Right to Information Act). They include decisions about the right to information application, the amount of access given to requested information and charges.

A review of the initial decision must be conducted by another officer of the agency who is at least as senior as the original decision maker.

A written application for an internal review must be submitted within 20 business days of notification of the original decision (s 82 Right to Information Act).

Importantly, Queensland legislation allows a person to apply for external review to the Queensland Information Commissioner (s 85 Right to Information Act, s 99 Information Privacy Act 2009 (Qld) (Information Privacy Act)) without having first applied for internal review.

Despite being able to go directly to an external review, it is often preferable for a person to seek internal review first as it is quicker than external review.

External review of Queensland right to information decisions

External review by the Queensland Information Commissioner is a merit review of the original decision. In Queensland under both the Right to Information Act and the Information Privacy Act, an application for external review must be lodged in writing to the office of the Queensland Information Commissioner within 20 business days of the written notice of the decision (s 88 Right to Information Act, s 101 Information Privacy Act). The Queensland Information Commissioner may also waive processing charges at external review due to the agency or minister having delayed their decision (ss 65, 93(2) Right to Information Act).

The Queensland Information Commissioner can refer questions of law arising on an external review to the Queensland Civil and Administrative Tribunal (QCAT) for determination (s 118 Right to Information Act, s 131 Information Privacy Act). The Queensland legislation also provides an avenue for appeal to the Queensland Civil and Administrative Tribunal against a decision of the Queensland Information Commissioner. Such an appeal may only be on a question of law and must be filed within 20 business days after the date of the decision being appealed.

Making a complaint about the handling of a Queensland right to information request

The Queensland Information Commissioner can deal with complaints about the handling of right to information requests. In Queensland, complaints of agency handling of right to information requests can also be directed to the Queensland Ombudsman.