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Intention to recommend that an Information Commissioner review not
be undertaken under s 54W(a)(i) of the Freedom of Information Act 1982
Information Commissioner review applicant
David Wright
Agency
National Disability Insurance Agency
Recommendation date
23 June 2025
OAIC reference number
MR25/00882, MR25/00883,
MR25/00884, MR25/00879
Agency reference number
FOI 24/25-1404, FOI 24/25-1405, FOI
24/25-1406, FOI 24/25-1403
Summary
1. I refer to the applications made by David Wright (the applicant) for Information
Commissioner review (IC review) of an internal review decision made in relation to four
primary FOI Decisions of the National Disability Insurance Agency (the Agency) under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
2. The purpose of this letter is to advise you of my intention to recommend that the
Information Commissioner exercises their discretion to decide not to undertake IC
reviews under s 54W(a)(i) of the FOI Act, on the basis that these IC reviews are lacking in
substance.
3. During an IC review, applicants will be given a reasonable opportunity to present their
cas
e1. As such, you are being provided an opportunity to comment or make submissions
objecting to this recommendation by 7 July 2024.
4. The background of this matter is provided at
Attachment A.
Discretion not to undertake an IC review
5. The Information Commissioner may decide not to undertake a review, or not to continue
to undertake a review, if:
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e Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.26]
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a. the applicant fails to comply with a direction by the Information Commissioner
(s 54W(c)), or
b. if the Information Commissioner is satisfied:
i.
the review application is frivolous, vexatious, misconceived, lacking in
substance or not made in good faith (54W(a)(i))
ii.
the review applicant has failed to cooperate in progressing the IC
review application or the IC review without reasonable excuse
(54W(a)(ii))
iii.
the Information Commissioner cannot contact the applicant after
making reasonable attempts (s 54W(a)(ii )) or
c. if the Information Commissioner is satisfied the IC reviewable decision should be
considered by the Administrative Appeals Tribunal (s 54W(b))
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Scope of IC review
5. The decision under review is the internal review decision, of 8 May 2025, that related to
four primary FOI Decisions and the issue to be decided is whether the Agency could
produce a document containing the information requested in discrete form.
Reasons for recommendation
6. Having regard to the reasons for seeking an IC review it appears that the Information
Commissioner, or a delegated member of staff, should exercise their discretion to decide
not to undertake an IC review under s 54W(a)(i) of the FOI Act because the reasons for
seeking an IC review lacks any grounds of substance for challenging the decision under
review. This is because it appears that the Agency has taken reasonable steps to
determine if a discrete document could be produced containing the information that the
applicant has requested and have determined it would be a substantial and
unreasonable diversion of resources for the Agency to produce any such document.
Requests involving the use of computers
7. Section 17 of the FOI Act requires that an agency produce a written document if it can be
produced by using a ‘computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information’ relevant to the applicant’s request
(s 17(1)(c)(i)), except where producing the document would substantially and
unreasonably divert the resources of an agency from its other operations (s 17(2)).
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e Freedom of Information Guidelines, Part 10: Review by the Information Commissioner [10.100]
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Subsections 17(1) and (2) of the FOI Act are to be considered sequentially. If s 17(1) does
not apply, then it is considered that s 17(2) of the FOI Act does not apply.
Agency’s decision
8. In their internal review decision the agency found that all reasonable steps have been
taken to locate documents matching the scope of your requests and that a discrete
document containing the information you are seeking does not exist.
9. In their internal review decision letter the Agency advised that;
• information relevant to the scope of your request may be contained amongst other
records held by the NDIA,
• the Director of Legal Operations was consulted and advised that while external law
firms may itemise expert witness costs as part of their invoice, this level of detail is
not captured in the Agency’s matter management system, LEX. As such, staff would
have to manually extract the information on costs of individual experts engaged by
external law firms on individual ART matters,
• Legal Operations, Legal Practice and Capability staff in the data and reporting team
estimated it would take a minimum of 25 hours per expert to extract this
information. This would include:
o Searches of over 15,000 records in LEX by small sections and small date
ranges at a time, to identify matters where the expert is mentioned. Each ART
matter could contain hundreds of file notes and documents requiring review.
o Review of each matter that included mention of the expert to locate invoices
from law firms who worked on those matters. Again, noting each ART matter
could contain hundreds of documents.
o Review each monthly invoice to determine if there were any legal
disbursements that also included the expert’s invoice
• The above information would then need to be extracted, compiled and totalled, to
produce a document containing the information you have requested. This process
would divert resources within the Legal Operations, Legal Practice and Capability
team, causing significant delays to the progression of their other work.
• an FOI officer would then need to review the information, make a decision on the
release of the information and draft a decision letter.
• In total, they estimate that it would take more than 100 hours to process all 4 of the
requests.
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10. The Agency also notes that narrowing the scope of the request by date would not
eliminate the need to manually search all documents, invoices, emails, and file notes
within LEX for internal engagements which gives rise to the substantial and
unreasonable diversion of the resources of the Agency in accordance with section 17(2).
Discretion not to continue to undertake an IC review
11. Under s 54W of the FOI Act, the Information Commissioner may decide not to undertake
a review, or not to continue to undertake a review, if the Information Commissioner is
satisfied that the IC review application is frivolous, vexatious, misconceived, lacking in
substance or not made in good faith.
12. Having regard to the scope of your request, the FOI decisions, and the internal review
decision, I am satisfied that:
• no discrete documents exist (s 24A), and
• whilst it would be possible for the Department to create a discrete document it is
clear that producing a written document containing the information in a discrete
form would substantially and unreasonably divert the resources of the Department
from its other operations (s 17(2) of the FOI Act) such that this matter is lacking in
substance.
13. For these reasons, I intend to recommend that the Information Commissioner exercises
the discretion to decide not to continue to undertake this IC review under s 54W(a)(i),
because I am of the view that this IC review application is lacking in substance.
14. The delegate of the Information Commissioner will review all material before the OAIC in
deciding whether to exercise the discretion to decide not to continue to undertake a
review in this case.
Next steps
15. It its open to you to withdraw your IC review. There is no penalty for doing so and you
can continue to make new FOI requests to the Agency. If you wish to withdraw your IC
review, please respond to this correspondence saying, ‘I no longer require an IC review’.
16. If you disagree with this proposed recommendation, please write to us by
7 July 2025
and advise us of your reasons. Your reasons will be taken into account before a decision
is made on whether to finalise this matter under s 54W(a)(i).
17. In the absence of a response by the above date it will be taken that you do not object to
the recommendation. Extensions of time to respond to this recommendation will only be
granted in exceptional circumstances. However, if the Information Commissioner
receives submissions prior to a decision being made, those submissions will be
considered.
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18. You will be provided review rights if the IC review is finalised by the Information
Commissioner under s 54W(a)(i) of the FOI Act.
Yours sincerely,
Alex Millar
Assistant Review Advisor
Freedom of Information Branch
Office of the Australian Information Commissioner
23 June 2025
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ATTACHMENT A
Background
Date
Events
26 February 2025
Applicant makes four FOI request to the Agency for
documents relating to the NDIA’s engagement of
named third parties and external law firms in relation
to ATT and ART matters, and payments to these third
parties external law firms.
The applicant noted he was only requesting a single
total figure and was not requesting payments broken
down by individual ART/ATT matter.
These FOI requests were given the agency reference
numbers: FOI 24/25-1404, FOI 24/25-1405, FOI 24/25-
1406, FOI 24/25-1403.
7 April 2025
The Agency issued four decisions in response to the
applicant’s FOI requests.
The Agency found that they do not possess the
information the applicant sought and that it was not
possible to produce the documents under 17(1)(c).
8 April 2025
The applicant sought an internal review of the
Agency’s decisions.
8 May 2025
The Agency issued one an internal review decision in
response to the request for internal review of the
decisions in all four of the applicant’s original FOI
requests.
14 May 2025
IC review applications received by the Office of the
Australian Information Commissioner. All four
applications relate to the internal review decision of 8
May 2025.
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14 May 2025
The OAIC sent a preliminary inquiry to the Agency
requesting information in relation to the FOI decisions.
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