How do I finalise my reasons for a decision if my FOI matter has deemed?

What’s the difference between an FOI decision and a SoR following a deemed refusal?

If an FOI decision-maker fails to proceed to a decision within the ordinary statutory period (usually 30 days, unless subject to an extension), then a matter is taken to be deemed refused (the deemed refusal) in accordance with s 15AC of the Freedom of Information Act 1982 (Cth) (FOI Act) . A deemed affirmation can also occur if an internal review decision is not made within time, in accordance with s 54D(2) of the FOI Act.

This deemed refusal becomes the ‘refusal decision’ for the purposes of any external review before the Office of the Australian Information Commissioner (OAIC) or Administrative Review Tribunal (ART).

Paragraph 3.161 of the FOI Guidelines provides that even where a decision has deemed, an Agency or Minister still has an obligation to continue processing the FOI request and to provide a Statement of Reasons (SoR) upon finalisation of the processing of that request.

In practice this SoR provides a summary of the decision that the FOI decision ‘would have made’ had the decision been made within the ordinary statutory time frame. However, if the matter proceeds to external review, the deemed refusal remains the reviewable decision, not the SoR. Instead, the OAIC or ART will generally treat the SoR as an outline of the decision-maker’s position, which will generally also be outlined in any written or oral submissions before the review body.

This means that there are some practical and semantic differences between an ordinary FOI decision statement and a SoR following a deemed refusal.

My matter has deemed, but I’ve now finished processing. How do I write a SoR?

Aside from some subtle semantic changes, your SoR will contain largely the same information as any other FOI decision statement.

As FOI decisions makers will be aware, there are various factors under the FOI Act that decision-makers must consider when assessing a request for documents. In light of this, decision outcomes can range from:

• granting full access to documents
• noting documents do not exist
• deferring access to documents until a future date, or
• imposing processing charges.

In line with general principles of administrative decision-making, s 26 of the FOI Act stipulates that a SoR must be given to an FOI Applicant. This document provides the FOI Applicant with a summary of the decision that has been made and explains how and why a decision-maker has arrived at their decision. The SoR also provides information about the FOI Applicant’s review rights.

Section 26 of the FOI Act outlines exactly what needs to be included in an SoR under the FOI Act, and FOI decision-makers should also consult the OAIC’s SoR checklist.  

There are the principles that should also be included and reflected in any SoR following a deemed refusal. However, any references to a ‘Decision’ being made will need to be edited to reflect that the decision itself was the deemed refusal and that the SoR reflects the decision that the Agency or Minister would have made had the request been processed within the ordinary statutory period.  Therefore, instead of using the word ‘decided’, any concluding phrases should be substituted with ‘I have identified’, ‘I am satisfied’ or ‘I consider’.

The summary of review rights should also confirm that the time in which an FOI applicant can seek external review by the OAIC starts from the date the decision deemed, not the date of the SoR being issued. Noting that an FOI Applicant has 60 days to apply to the OAIC from the date the decision deemed, we always recommend writing to an FOI applicant and highlighting their relevant review rights on the date the decision deemed. This means that the FOI applicant is on notice of their review rights, even if the finalisation of the request and notifying of the SoR takes additional time. FOI Officers should also refer to the relevant review rights again (and the possibility that an FOI Applicant could seek an EoT from the OAIC if they apply out of time) in the SoR’s review rights summary. 

To help FOI Officers work through these semantic differences, we have provided some examples below.

Examples

Brief summary:

Had I made a decision within the ordinary statutory timeframe regarding your request, I am satisfied that I would have:

• granted full access to documents [x],
• granted you part access to documents [x], and
• refused access in full to documents [x].

Conclusion paragraph:

As noted above, I am satisfied that had I made a decision on your request by the statutory due date, I would have made a decision to:

1. Grant access in full to x documents.
2. Grant access in part to x document subject to the deletion of irrelevant material under section 22(1)(a)(ii) of the FOI Act.
3. Grant access in part to x documents subject to the conditional exemption of material under sections xx and xxx of the FOI Act.

I am satisfied that disclosure of the conditionally exempt material under sections xx and xx would be contrary to public interest, and therefore am satisfied that this material should not be released.

Review Rights:

Internal review

As your request was deemed refused under section 15AC of the FOI Act, you do not have a right to seek internal review of the decision on your request.

IC review rights

You do have a right to seek review of the decision on your request by the Information Commission (IC), in accordance with section 54L of the FOI Act.

If you wish to apply for IC review, you must do so in writing within 60 days of the deemed refusal decision (unless an extension of time application is granted by the IC). This means that any application must be made by XX Month 2025.

Your application must provide an address that notices can be sent to and include a copy of this decision letter.

Keep change in mind

Whilst it’s easy to get caught up in semantics, the changes in wording between decision SoR compared with a SoR following a deemed decision are important. If overlooked, your FOI Applicant may be confused about what constitutes the reviewable decision and their review rights arising from a deemed decision.  

If your agency would like assistance reviewing or updating your FOI decision templates, Sparke Helmore has a team of FOI experts ready to assist.