Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information)

This matter came before Deputy President T Thawley J of the Administrative Appeals Tribunal concerning a request for access to emails made by the Australian Conservation Foundation Incorporated. The dispute arose after the Minister for the Environment refused access to certain documents, citing exemptions under the *Freedom of Information Act 1982* (Cth). The applicant sought a review of this decision by the Information Commissioner, who subsequently decided not to undertake an Information Commissioner (IC) review, instead referring the matter to the Tribunal under section 54W(b) of the Act. The applicant then applied to the Tribunal for a review of the original decision, as permitted by section 57A(1)(b) of the Act.

The primary legal issue before the Tribunal was whether the applicant was entitled to a recommendation from the Commonwealth for the payment of their costs in the proceedings, pursuant to section 66(1)(a) of the *Freedom of Information Act 1982*. This section allows for such a recommendation if an application is made for a review of a decision of the Information Commissioner on an IC review. The Minister contended that this condition was not met because the application to the Tribunal was made under section 57A(1)(b), which concerns a review of the original decision when the Information Commissioner decides not to undertake an IC review, rather than a review of a decision made by the Information Commissioner after conducting an IC review under section 55K.

The Tribunal considered the definitions and operation of various sections of the Act. It noted that an IC review is a review undertaken by the Information Commissioner under Part VII, culminating in a decision under section 55K. In contrast, a decision under section 54W(b) is a decision *not* to undertake an IC review. The Tribunal found that in this case, there had been no IC review conducted by the Information Commissioner, and therefore no decision made by the Information Commissioner on an IC review. The application to the Tribunal was for a review of the original decision, following the Information Commissioner's decision not to review, as permitted by section 57A(1)(b).

Consequently, the Tribunal concluded that the condition in section 66(1)(a) of the Act, requiring an application for review of a decision of the Information Commissioner on an IC review, was not satisfied. Therefore, the discretionary power to recommend that the applicant's costs be paid by the Commonwealth was not enlivened, and the applicant's request for costs was refused.