Freedom of Information Act 1982

PART VII - REVIEW BY INFORMATION COMMISSIONER

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Division 6 - Procedure in IC review

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SECTION 55 Procedure in IC review - general

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55(1)
The Information Commissioner may, for the purposes of an IC review, review an IC reviewable decision by considering the documents or other material lodged with or provided to the Information Commissioner, and without holding a hearing, if:

(a) it appears to the Information Commissioner that the issues for determination on the IC review can be adequately determined in the absence of the review parties; and

(b) the Information Commissioner is satisfied that there are no unusual circumstances that would warrant the Information Commissioner holding a hearing; and

(c) none of the review parties have applied for a hearing under section 55B .

55(2)
The Information Commissioner may otherwise:

(a) conduct an IC review in whatever way he or she considers appropriate; and

(b) use any technique that the Information Commissioner considers appropriate to facilitate an agreed resolution of matters at issue in the IC review (for example by using techniques that are used in alternative dispute resolution processes); and

(c) allow a person to participate in an IC review by any means of communication; and

(d) obtain any information from any person, and make inquiries, that he or she considers appropriate; and

(e) give written directions as to the procedure to be followed in relation to:

(i) IC reviews generally; or

(ii) a particular IC review.

Example 1:

The Information Commissioner may allow a person under paragraph (2)(c) to participate in a hearing by telephone.

Example 2:

The Information Commissioner may give written directions under subparagraph (2)(e)(ii) as to the procedure to be followed when dealing with confidential documents in a particular IC review.

55(3)
A direction given under paragraph (2)(e) is not a legislative instrument.

55(4)
Without limiting subsection (2), the Information Commissioner must, in relation to an IC review:

(a) conduct the IC review with as little formality and as little technicality as is possible given:

(i) the requirements of this Act; and

(ii) the requirements of any other law; and

(iii) a proper consideration of the matters before the Information Commissioner; and

(b) ensure that each review party is given a reasonable opportunity to present his or her case; and

(c) conduct the IC review in as timely a manner as is possible given the matters mentioned in subparagraphs (a)(i) to (iii).

55(5)
If the Information Commissioner holds a hearing, the Information Commissioner:

(a) must hold the hearing in public, unless the Information Commissioner is satisfied that it is not desirable to do so:

(i) because of the confidential nature of any evidence or matter relating to the proceeding; or

(ii) for any other reason; and

(b) is not bound by the rules of evidence; and

(c) may hold a part of the hearing in the absence of a review party (or a review party's representative) if it is necessary to do so to prevent disclosure to the review party (or the review party's representative) of any evidence or matter relating to the proceeding that is of a confidential nature.

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History

S 55 substituted by No 51 of 2010, s 3 and Sch 4 item 34, applicable in relation to requests for access made under section 15 of the Freedom of Information 1982 that are received at or after 1 November 2010; and applications under section 48 of that Act that are received at or after 1 November 2010. S 55 formerly read:

SECTION 55 Applications to Administrative Appeals Tribunal
55(1)
Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request; or

(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or

(b) a decision to defer the provision of access to a document; or

(c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or

(d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or

(e) a decision under section 30A relating to remission of an application fee; or

(f) a decision to grant access to a document only to a qualified person under subsection 41(3) ; or

(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48 ; or

(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48 .

55(2)
Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.

55(3)
Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:

(a) the person concerned has applied under section 54 for a review of the decision;

(b) a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and

(c) he or she has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal.

55(4)
Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975 , the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is:

(a) except where paragraph (b) or (c) applies - the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day;

(b) where the decision is a decision that is to be deemed by subsection 56(1) or (3) to have been made - the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or

(c) where subsection 57(3) is applicable - the period commencing on the day on which the Ombudsman has informed the applicant as referred to in that subsection and ending on the sixtieth day after that day.

55(5)
The Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.

(5A)
The Tribunal's power to make a decision on a review of a decision of a kind mentioned in paragraph (1)(ab) includes a power to require the agency or Minister concerned to conduct further searches for the document.

55(6)
The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:

(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or

(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or

(c) the amendment relates to a record of an opinion to which neither of the following applies;

(i) the opinion was based on a mistake of fact;

(ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

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