NDIA Accountability Project

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Extension of time under s 15AC

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Our reference: RQ21/02483

Agency reference: FOI 21/22-0045

Shirley

Sent by email: foi+request-7590-d777a3e5@righttoknow.org.au

Extension of time under s 15AC

Dear Shirley

On 31 August 2021, the National Disability Insurance Agency (the NDIA) advised this office that it had not made a decision on your FOI request of 16 July 2021 within the statutory period provided by the Freedom of Information Act 1982 (Cth) (the FOI Act). Consequently, the FOI Act deems that the NDIA has refused your request.

However s 15AC of the FOI Act allows the Information Commissioner to extend the processing time for an FOI request where the initial decision period has ended and the agency or Minister has not provided the applicant with notice of a decision. The NDIA has applied for further time to finalise your request.

Decision

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

I decided to grant the NDIA further time to 31 August 2021 to process your request. My reasons and considerations follow:

  • The NDIA has advised the OAIC that:
    • the FOI request relates to material that is sensitive and complex in nature
    • the NDIA sought to provide a decision by the due date, however COVID-19 lockdowns have impacted on agency operations, and
    • the NDIA has processed the request and will provide you with a decision on 31 August 2021.

This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken never to have applied because the NDIA has now finalised your request and notified you of its decision.

1300 363 992 T +61 2 9284 9686 GPO Box 5218 www.oaic.gov.au enquiries@oaic.gov.au F +61 2 9284 9666 Sydney NSW 2001 ABN 85 249 230 937

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 (including any extension of time), 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 does not mean that charges can be reimposed and any deposit you have paid should be refunded.

If you did not receive a decision, or you disagree with the NDIA’s decision, you may wish to seek Information Commissioner review here. Further information on applying for IC review is available on the OAIC website.

Contact

If you have any questions about this letter, please contact me on (02) 9284 9783 or via email at rochelle.dunlop@oaic.gov.au. In all correspondence, please include the OAIC reference number at the top of this letter.

Yours sincerely

Rochelle Dunlop Review and Investigation Advisor FOI Regulatory Group

2 September 2021

Review rights

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 Court 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

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 can be found published on our website: https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi- complaint/.