There are three types of complaint that can be made to the Information Commissioner:
Before you can make a complaint to the Information Commissioner, you must have had contact with the organisation that holds the information. The required contact for each type of complaint is summarised below.
| Type of complaint | You must |
|---|---|
| Against decision to refuse access or correction or to charge a fee (FOI) | Go through initial application and internal review processes |
| Against decision to grant access (FOI) | Have received notice of decision to disclose information |
| Interference with privacy | Have requested the organisation to resolve or rectify |
You can find more information on those requirements on our Complaints and Appeals page.
For each type of complaint to the Information Commissioner, there is a time limit for making the complaint.
| Type of complaint | Time for making complaint |
|---|---|
| Against decision to refuse access or correction or to charge a fee (FOI) | Within 90 days from receipt of internal review decision |
| Against decision to grant access (FOI) | Within 30 days from receipt of decision |
| Interference with privacy | Within 12 months from becoming aware of interference |
Both the complainant and the organisation are entitled to be involved in the complaint process. If the complainant is objecting to disclosure of information under the FOI provisions, the person who made the application will also be a party.
The Office may also need to consult, or obtain information from, staff of the organisation or other people who may be affected in some way by the complaint or who can provide information relevant to the complaint.
In some cases, other people who have an interest in the information may be joined as parties to a hearing.
There is currently no fee for making a complaint.
Generally, each party must pay their own costs of the proceeding, for example for legal advice, legal representation or copying documents. The Commissioner can order a party to pay the hearing costs of another party or parties in exceptional circumstances.
Complaints to the Information Commissioner must be in writing in a form approved by the Commissioner. The following approved forms are available online or from our Office.
Completed forms should be lodged with our Office.
The way we approach each complaint will vary depending on what we see as the best way to explore options for resolution.
However, for each complaint, there are four possible stages recognised in the Information Act - acceptance, investigation, mediation and hearing.
The Commissioner does not usually become involved in dealing with a complaint prior to the hearing stage. Earlier stages are dealt with by other staff of the Office. Our Complaints Officer/Mediator will give the parties information about the progress of the complaint from time to time. If you have questions about the progress of the complaint you can contact our office.
Once a complaint is received, the Office must decide whether the Commissioner has the power to deal with it, and whether it should be accepted. This involves checking things like:
whether it meets the formal requirements for a complaint, for example, whether the complainant has supplied a name and address for correspondence;
whether the complainant has pursued all required steps with the organisation eg, been through the internal review process (for an FOI application) or sought resolution or rectification (for a privacy complaint), and
whether the complaint is within time limits set by law (see the table above).
We may contact the complainant or the organisation to obtain information to help us to decide whether to accept the application. The Office has 90 days to notify the complainant about whether the complaint will be accepted.
When we accept an application that does not mean that we accept that the organisation has made the wrong decision or interfered with the complainant's privacy. It just means that we accept that the complainant is entitled to make a complaint. We then proceed to the next stage - investigation.
The investigation stage usually involves contacting the organisation complained about and obtaining relevant information (including, for FOI access applications, copies of information that is the subject of the complaint and correspondence that the organisation has had with the complainant and any third parties). The complainant may also be contacted to discuss the complaint and ways it might be resolved.
We may also have to contact staff of the organisation and other people to obtain information about the complaint. We may have to disclose the fact that the complainant has made the complaint and information about the complaint so that the organisation can provide information or respond to the complaint.
We will try to give the parties as much information as we can about parts of the Act that may be relevant, and any guidelines or past decisions that may be useful. We may also express a preliminary view about the application of the Act. A preliminary view is not a decision. It is a tentative view about the issues that may need to be addressed and the possible strengths and weaknesses in a party's case. It is intended to put parties in a better position to realistically assess their prospects for success, and to identify issues that may need to be addressed if the complaint were to proceed to a hearing.
Any information, submissions and evidence given to us at this stage may be exchanged with the other parties, unless we accept that there are good reasons why parts should be withheld. One good reason for not disclosing information would be if it would disclose information that is claimed to be exempt. There may also be other reasons why disclosure of information would not be appropriate. However, even in such cases, we will consider options for disclosure in some other way, eg, in edited form or summary form, if disclosure is required to explain the substance of the arguments of a party or is otherwise likely to advance the prospects of resolution.
If, after investigation, we find there is enough prima facie evidence to support the complaint, it will proceed to the mediation stage. Again, this does not mean that a final decision has been made in the complainant's favour. It means that there is enough evidence for the complaint to go to a hearing, if mediation is not successful. If there is not enough evidence, we will dismiss the complaint.
The parties will be notified in writing of the decision made as a result of investigation.
The aim of the mediation stage is to try to resolve the complaint in a way that is acceptable to the parties. It may involve telephone negotiations with each party involved, correspondence, or face to face meetings with some or all of the parties. The mediation process is confidential.
At the end of the mediation, the mediator issues a certificate setting out the outcome of the mediation. If the mediation resolves the matter, and the parties wish, orders can be issued that reflect the mediated outcome. If the complaint is not resolved by mediation, the Commissioner will conduct a hearing.
If it is necessary for the complaint to go to a hearing, information, submissions and evidence that have been provided in the course of the complaint may be considered (other than anything said, recorded or done in the course of mediation).
Each party will be given the chance to make further submissions and present further evidence in support of their case. This will usually be done by allowing each party to lodge further written submissions, which can be supported by written evidence in the form of affidavits or statutory declarations. If the Commissioner considers that there is a need for further exploration of the issues, or oral examination of witnesses, a hearing in-person may be arranged.
Again, the usual course will be for all information and materials lodged by one party to be provided to the other parties (unless it would disclose information claimed to be exempt).
After the hearing, the Commissioner will provide a written decision and reasons for decision.
There is a limited right to appeal to the Supreme Court
A complainant can withdraw a complaint at any time by writing to the Commissioner. If the complaint is withdrawn, the Commissioner will notify any other parties who have been informed of the complaint that it has been withdrawn.
If a complaint is withdrawn, the complainant is not entitled to make another complaint about the same matter without first receiving the written permission of the Commissioner.
The Commissioner may discontinue a complaint if satisfied that the complainant is no longer interested in pursuing it.