NDIA Accountability Project

This project is in DRAFT

Decision to decline an extension of time under s 15AC of the Freedom of Information Act 1982

‹ PrevPage 1 of 4 · Source p. 1Next ›

Decision to decline an extension of time under s 15AC of the Freedom of Information Act 1982

Agency National Disability Insurance Agency
FOI applicant Emily Lacey
Date of decision 9 February 2024
OAIC reference number RQ24/00518
Agency reference number FOI-3 23/24-0468

Decision

  1. On 6 February 2024, National Disability Insurance Agency (the Agency) applied to the Information Commissioner under s 15AC(4) of the Freedom of Information Act 1982 (Cth) (FOI Act) for an extension of 83 days to 7 February 2024 to process Emily Lacey’s (the FOI applicant) request of 19 October 2023 (the FOI request).

  2. I am a delegate of the Information Commissioner. I am authorised to make decisions on applications for further time under s 15AC(5) of the FOI Act.

  3. On the basis of the information before me, I have decided to decline the Agency’s request for further time to deal with the request. A decision on the FOI applicant’s request therefore remains due by 16 November 2024. My reasons are outlined below.

Background

  1. On 19 October 2023, the FOI applicant made an FOI request to the Agency. The FOI decision was due to be provided to the FOI applicant on 19 October 2023.

  2. On 6 February 2024, the Agency applied to the Information Commissioner for further time to process the FOI applicant’s request under s 15AC(4) on the basis that the processing period is insufficient to adequately deal with the FOI request. A copy of the Agency’s reasons are included at Attachment A.

Reasons for decision

  1. Subsection 15AC(5) of the FOI Act provides that I may allow further time that I consider appropriate for an agency or Minister to deal with the request.

  2. In declining this application for further time under s 15AC(5), I have considered the following factors:

  • Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act, to which I must have regard, in particular [3.164] – [3.167]
  • the reasons for delay in making an initial decision
  • the period of time sought, and the total estimated processing time
  • whether discussions with the applicant about the delay and extension of time application have occurred
  • the desirability of the decision being decided by the agency or minister rather than by IC review
  1. On the information before the OAIC, I am not satisfied that the application for further time is justified, for the following reasons:
    • The application provides limited evidence of appropriate work being undertaken by the Agency to process the FOI request to date. As such, it appears the Agency did not utilise the initial processing period effectively and I cannot find that an extension is justified.
    • While I acknowledge the Agency’s submissions regarding its resourcing challenges, a lack of staff because of inadequate allocation of resources or failure to assign additional temporary resources to FOI processing at peak times does not justify an extension in the absence of other extenuating circumstances. On this occasion, there do not appear to be other circumstances to demonstrate that the Applicant’s request is otherwise complex or voluminous for the Agency to deal with so as to justify an extension under s 15AC(5).
  2. The effect of this decision is that the agency remains deemed to have made an access refusal decision on the applicant’s request on 16 November 2024.
  3. I note that the Freedom of Information (Charges) Regulations 2019 provides if an applicant is not notified of a decision on a request within the statutory time limit the agency or Minister cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (regs 7(2), (3)). This extension under s 15AC of the FOI Act means that charges cannot be imposed and therefore any deposit the applicant has paid should be refunded.
  4. It is open to the applicant to seek Information Commissioner review (IC review) of the agency’s deemed access refusal decision of 16 November 2024. Further information on applying for IC review is available on the OAIC website. Any application for IC review would need to be made within 60 days of the agency’s decision or deemed decision.
  5. This extension of time matter is now closed. Your review rights are set out below.
  6. If you would like to discuss this matter, please contact our office on 1300 363 992 or by email at FOIDR@oaic.gov.au, quoting reference number RQ24/00518.

Yours sincerely,

Hannah Holswilder Director Freedom of Information Branch Office of the Australian Information Commissioner

9 February 2024

2

Attachment A

Please provide a timeline setting out the work already completed in order to process this request. Where an extension of time has previously been granted, describe the work that was undertaken during that extended period.

A line area consultation was required for this request. This had now been completed.

What work is required to finalise the request?

Documents from line area consultation need to be reviewed and a Decision Letter drafted.

Please describe the scope and complexity of the request. Please provide the number of documents at issue and the number of folios, as well as any complexity in the nature of those document

The line area consultation produced 6 documents totalling approximately 80 pages. These need to be reviewed for sensitivities.

Do other agencies or parties have an interest in the request?

No

Please describe the measures that would be taken to ensure a decision is made within the period of the requested extension and to keep the applicant informed of the progress of the request

The request is being prioritised so that it can be released to the Applicant by 7 February 2024.

Review rights

Review by the Administrative Appeals Tribunal

If you disagree with the Office of the Australian Information Commissioner’s (OAIC) decision, you can apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for a review of a decision of the Information Commissioner if you think that a decision by the Information Commissioner to grant an extension of time is not legally correct. You can make this application under the Administrative Decisions (Judicial Review) Act 1977.

The Court will not review the merits of your case, but it may refer the matter back to the Information Commissioner for further consideration if it finds the decision was wrong in law or the Information Commissioner’s powers were not exercised properly.

An application for review must be made to the Court within 28 days of the OAIC sending the decision to you. You may wish to seek legal advice as the process can involve fees and costs. Please contact the Federal Court registry in your state or territory for more information, or visit the Federal Court website at http://www.fedcourt.gov.au/.

Further information about how applications to extend the timeframe to process an FOI request are handled by the OAIC can be found published on our website:

  • For FOI applicants: How to make an FOI request: Extensions of time
  • For agencies and ministers: Guidance and advice: Extension of time for processing requests

The OAIC has the power to investigate complaints about an agency’s actions under the Freedom of Information Act 1982 (FOI Act). This is a separate process from asking for an Information Commissioner review following a decision made under the FOI Act. Complaints usually focus on how an agency has handled your FOI request or complied with other obligations under the FOI Act, rather than the decision itself.

In some cases, the Information Commissioner’s investigation of a complaint may lead to the agency addressing the issues that you have complained about. In other cases, the Information Commissioner may make suggestions or recommendations that the agency should implement. The Information Commissioner can only make non-binding recommendations as a result of a complaint. You and the agency will be notified of the outcome of the investigation.

FOI complaints to the OAIC must be made in writing. Our preference is for you to use the online FOI complaint form if at all possible.

Further information about how to make a complaint is available on our website: https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-complaint/.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman’s services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman’s office for more information on 1300 362 072 or visit the Commonwealth Ombudsman’s website at http://www.ombudsman.gov.au.

4