Price and Nominal Defendant

Application number:
210556
Decision date:
Friday, Feb 13, 2009

Price and Nominal Defendant

(210556, 13 February 2009)

Functus Officio

 

The applicant applied to the Office of the Information Commissioner for a review of matter previously subject to two external reviews.

 

The earlier decision of the Information Commissioner’s delegate was valid under section 89 of the FOI Act.  The second review was otherwise finalised. The Acting Information Commissioner noted that:

 

·       there are no errors in either review that render the outcomes invalid

·       the FOI Act does not give the Information Commissioner a broad power to review, vary, set aside or affirm the outcome of a finalised external review or decision

·       the FOI Act gives the Information Commissioner the power to correct an obvious accidental slip or omission

·       the applicant is not seeking a correction of an obvious slip or omission in the decision.

 

The question raised by this application for review is whether the Information Commissioner has the power to vary, set aside or affirm the outcome of a finalised review.  The question as to whether a power is spent is a matter of interpretation of the statute conferring the relevant power. 

 

In her decision, the Acting Information Commissioner made the following observations:

 

·       section 24 AA of the Acts Interpretation Act 1954 (AIA) clarifies that the authorisation by an Act to make a decision included the power to amend or repeal the decision

·       section 4 of the AIA provides that a contrary intention in an Act may wholly or partly displace section 24AA

·       under the FOI Act decisions of the Information Commissioner are final, determinative of the rights of individuals, adjudicative in nature and binding on agencies

·       section 24AA of the AIA is wholly displaced by virtue of section 4 of the AIA on the basis that the FOI Act expresses a “contrary intention”

·       the Information Commissioner has no power to amend or repeal an external review decision under section 24AA of the AIA.

 

Once issued to a participant in an external review, a decision is irrevocable because the decision-making power is spent.  The applicant’s request for a review of an external review is beyond the power of the Information Commissioner, who is functus officio in these circumstances.