Decision not to investigate a FOI complaint under
s 73 of the
Freedom of Information Act 1982
Complainant
David Wright
Respondent
National Disability Insurance Agency
Decision date
13 June 2025
OAIC reference number
CP25/01516
Agency reference
FOI 24/25-0251
number
1. As a delegate of the Information Commissioner, I am authorised to make a
decision under s 73 of the
Freedom of Information Act 1982 (FOI Act) not to
investigate a FOI complaint.
2. I have decided not to investigate the complainant’s FOI complaint under s 73
of the FOI Act as I am satisfied that the FOI complaint is more appropriately
considered through an IC review, and the complainant has not exercised that
right when it would be reasonable to do so pursuant to s 73(b).
Background and FOI complaint issues
3. On 15 May 2025, David Wright (the complainant) submitted an FOI complaint
to the Office of the Australian Information Commissioner (the OAIC) in
accordance with s 70 of the FOI Act in relation to an FOI request submitted to
the National Disability Insurance Agency (the respondent).
4. In their complaint, the complainant said:
“I wish to lodge a complaint about the handling of my FOI request to the National
Disabililty Insurance Agency (NDIA)… I submitted this request on 28 August 2024 -
almost nine months ago - and I am still waitiing for a response letter.
The NDIA has
far exceeded its statutory timeframe for providing me with a response. This is totally
unacceptable…”
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5. It appears the outcome sought by the complainant from the FOI complaints
process is to obtain a decision and access to the requested documents from
the respondent.
Considerations and preliminary inquiries
6. In making my decision, I have had regard to the following:
• the FOI complaint of 15 May 2025
• the respondent’s submissions of 6 June 2025 in response to the OAIC’s
preliminary inquiries,
• the FOI Act, in particular ss 3(4), 15, 15AC, 72 and 73(b), and
• the Guidelines issued by the Australian Information Commissioner under s
93A of the FOI Act to which agencies must have regard in performing a
function or exercising a power under the FOI Act (FOI Guidelines), in
particular paragraphs [11.11 and 11.5].
Respondent’s response to preliminary inquiries
7. The respondent provided the following response to the OAIC’s request for
preliminary inquiries:
i. During the process, the decision maker has had extended leave which
resulted in the initial delays of processing the FOI request. Then she
experienced technical difficulties trying to access documents provided
in relation to the FOI scope. Eventually she was able to be granted
access but still had issues opening and downloading documents. Once
that was all resolved, she spent time reviewing and sorting thoroughly
through the documents searching for any risks and sensitivities that
may be harmful to NDIA or the Minister’s office, which has taken some
time to complete.
ii.
When we received OAIC’s preliminary enquiries, it was brought to her
attention. She has now confirmed that the decision has been finalised,
however, the decision and documents have been sent to the internal
business units she consulted with for any final comments in reference
to any risks or sensitivities that they can identify before releasing the
decision to the FOI applicant.
iii. Feedback has been provided to the FOI team about the importance of
regularly updating applicants as their FOI matter progress. Our
director will also be writing to the FOI applicant to apologise for the
delay and provide the latest update.
iv. The NDIA is currently contending with a significant upward trajectory
of FOI matters. In this financial year, we expect to receive 2,300-2,400
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FOI request. An approximate increase of 1,000 matters from the
previous reporting year. We have received a significant increase that
impacts our ability to process them in the prescribed timeframes. We
are currently recruiting more staff, upskilling current staff and creating
processes which support timely decision making with a focus on early
resolutions. The NDIA remains committed to the improvement of FOI
processing and early resolution of matters it receives.
Section 73(b) of the FOI Act
8. Under s 73(b) of the FOI Act, I may decide not to investigate a FOI complaint if
the complainant has or had a right to have the action reviewed by the agency,
a court or a tribunal, or by the Information Commissioner under Part VII of the
FOI Act and has not exercised that right when it would be reasonable to do so
(s 73(b)).
9. The FOI Guidelines at
[11.5] states:
The Information Commissioner’s view is that making a complaint is not an
appropriate mechanism where IC review is available, unless there is a special
reason to undertake an investigation, and the matter can be dealt with more
appropriately and effectively in that manner. IC review will ordinarily be the more
appropriate avenue for a person to seek review of the merits of an FOI decision,
particularly an access refusal or access grant decision.
10. As set out above, in considering whether to investigate an FOI complaint, it is
open to me to decline to investigate a FOI complaint if the issues raised are
more appropriately dealt with through IC review.
11. Where an agency or minister has failed to meet the statutory processing
timeframe, it is taken to have made a decision refusing access to documents
under s 15AC(3) of the FOI Act. This is called a ‘deemed refusal’ decision,
which is a decision that I can review under the IC review process.
12. The respondent did not provide the complainant with notification of a
decision within the 30-day statutory timeframe prescribed under s 15(5)(b) of
the FOI Act. As the respondent did not provide notification by 27 October
2024, the respondent is taken to have deemed refused the complainant’s FOI
request.
13. The issue raised in this complaint concerning the respondent’s deemed
access refusal decision dated 27 October 2024 is more appropriately
considered through the IC review function, and it appears the complainant
has not exercised their right to seek IC review in relation to the respondent’s
decision when it would be reasonable to do so. Further, the outcome sought
by the complainant is for the respondent to make a decision and to obtain
access to the requested documents. Obtaining access to the requested
documents is not an outcome achievable through the FOI complaints process
and can only be achieved through the IC review process.
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14. On 21 May 2025, the OAIC wrote to the complainant inviting them to withdraw
their FOI complaint and instead seek IC review as the issue raised and
outcome sought by the complainant is more appropriately considered and
facilitated through the IC review process. The complainant was informed that
in absence of a response by the specified date, the Information Commissioner
may exercise their discretion in finalising the FOI complaint under s 73 of the
FOI Act. To date, the OAIC has not received a response from the complainant
in relation to this correspondence.
15. Should the complainant wish to seek IC review of the respondent’s decision,
they may do so here
: seek IC review.
16. Based on the information currently before me, I am satisfied that the issues
raised within the FOI complaint regarding the respondent’s deemed access
refusal decision are more appropriately considered through the IC review
function pursuant to s 73(b) of the FOI Act and as the complainant is seeking
access to documents it would be reasonable to do so.
17. This is consistent with the Information Commissioner’s approach as per the
FOI Guidelines at
[11.5].
Finalisation of the FOI complaint and review rights
18. In light of my findings above, I consider the discretion under s 73 not to
investigate the FOI complaint is enlivened in this matter. In deciding not to
investigate the FOI complaint, I have also considered that in these
circumstances, investigating the FOI complaint will not promote the objects
of the FOI Act (s 3), and would not be an efficient or effective use of the OAIC’s
resources.
19. I confirm the FOI complaint is now finalised, and the matter is closed. As the
matter is now closed, the OAIC will not deal further with these issues.
Information about review rights is set out below.
20. Information about how the OAIC handles a FOI complaint can be accessed on
the OAIC’s website
here.
Yours sincerely,
Rocelle Ago General Manager
Freedom of Information Case Management
Office of the Australian Information Commissioner
13 June 2025
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Complainant’s review rights
Judicial review
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 not to investigate, or not to continue to investigate, a
complaint under the
Freedom of Information Act 1982 (the FOI Act) 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 receiving the
decision. 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.
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 a
t http://www.ombudsman.gov.au.
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