An agency might refuse access to or correction of a record as requested. In either case, a person can apply for a review of that decision.
In the first instance, this is by application to the Chief Executive of the agency (internal review). After that, a matter then can be reviewed by the Ombudsman or, if the matter concerns a decision made by the police, the Police Ombudsman. In addition, or as an alternative, a review can be sought at the South Australian Civil and Administrative Tribunal (SACAT).
Internal review [s 38]
The first stage of seeking a review of a decision to refuse access or correction of a record is to seek an internal review if this option is available [Freedom of Information Act 1991 (SA) ss 29, 38].
Generally an internal review will be available, but there are some decisions where this will not be an option. For instance, an internal review will not be available if the determination has been made by the principal officer of the agency (i.e. the Chief Executive Officer) or at the direction of a person to whom the principal officer is responsible. Whether or not an internal review is available will be indicated on the decision letter or record.
A request for internal review must be:
- in writing;
- accompanied by the prescribed application fee;
- addressed to the principal officer/Chief Executive Officer of the agency;
- lodged within 30 days of notification of the determination being given to the applicant.
Where a decision is reversed the application fee will be refunded.
If there is no right of internal review for a decision a person may apply directly to the South Australian Civil and Administrative Tribunal (SACAT) – see below Application to SACAT.
Review options after an unsuccessful internal review or where no internal review is available
After an unsuccessful internal review, or where there is no option of internal review available, an applicant may choose to apply to a relevant review authority, that is, the Ombudsman or Police Ombudsman (in the case of police decisions) . Alternatively they may apply to the South Australian Civil and Administrative Tribunal (SACAT) – see below Application to SACAT.
Application to relevant review authority (Ombudsman or Police Ombudsman) [s 39]
If a decision has been made by an agency other than SAPOL or the Minister responsible for police the Ombudsman is the relevant review authority if a person has not been successful with an internal review.
Where the decision has been made by a police officer or the Minister responsible for police then any application to challenge an internal review must be made to the Police Ombudsman.
The application must be made within 30 days after the date of the decision. An extension may be granted but this is at the discretion (choice) of the relevant review authority.
For the purposes of conducting a review the Ombudsman (or Police Ombudsman) may carry out an investigation of the matter and exercise the same investigative powers that are conferred under the Ombudsman Act 1972 (SA) [s 39(5)(a)]. It may also require the agency to sort and compile documents if it appears that they have failed to do so.
The Ombudsman (or Police Ombudsman) has the power to initiate a settlement between the agency and the applicant (person seeking review). If an applicant fails to reasonably cooperate with the review (including efforts to reach a settlement) the review authority may dismiss the application.
Application to SACAT [s 40]
An application to SACAT made by made in three instances:
- after an unsuccessful internal review application; or
- in response to a decision that is not subject to internal review; or
- for review of a decision by the Ombudsman or Police Ombudsman.
The application must be lodged within 30 days of notice of the determination for which review is being sought has been given to the person seeking review [s 40(3)].
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