Our reference: MR25/00938
Agency reference: FOI 24/25-1232
David Wright
By email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your application for Information Commissioner review of the
National Disability Insurance Agency’s decision
Dear David Wright,
I refer to your application for Information Commissioner review (IC review) of a revised
decision made by the National Disability Insurance Agency (the Agency) on 23 June 2025
under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
The purpose of this letter is to advise you of my intention to recommend that a delegate of
the Information Commissioner exercises the discretion to decide not to continue to
undertake a review of your IC review application under s 54W of the FOI Act on the basis that
your IC review application is lacking in substance, and to give you an opportunity to provide
reasons for me to reconsider making this recommendation.
The reasons for my recommendation follow.
FOI request and background
On 24 January 2025 you made the following freedom of information request (FOI request) to
the Agency:
…the following information for all AAT/ART matters to which the NDIA was a Respondent, for
the six months from 1 July 2024 to 31 December 2024:
1. For all AAT/ART matters that went to hearing, the overall average number of days that a
matter was at hearing, and the overall average daily cost per matter incurred by the NDIA in
participating in those hearings (being the cost of hearing days only).
2. For all AAT/ART matters, including those matters that did not go to hearing, the average
total monthly cost per matter incurred by the agency in being a Respondent in these AAT/ART
matters.
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937
link to page 2 link to page 2
On 17 April 2025, the Agency purported to grant you full access to one document created in
accordance with s 17(1)(c) of the FOI
Act.1
On 16 May 2025, you applied for IC review of the Agency’s decision.
On 23 June 2025, the Agency made a revised decision to grant you full access to a further
document created in accordance with s 17(1)(c) of the FOI Act.
Scope of IC review
Based on your correspondence of 30 June 2025, we understand that you contend that the
document provided to you on 23 June 2025 does not contain the information you requested.
The issue to be decided in this IC review is therefore whether the Agency is obligated to
provide you with a further document with the information you maintain is missing in
accordance with s 17(1) of the FOI Act.
Requests involving the use of computers
Section 24A requires that an agency or minister take ‘all reasonable steps’ to find a
requested document before refusing access to it on the basis that it cannot be found or does
not exist. While the question of whether a discrete document (or documents) containing the
information which the applicant seeks cannot be found or does not exist is not in issue in this
matter
,2 where information is stored in electronic form, s 17 of the FOI Act requires the
agency to undertake a search of its databases to identify whether a written document can be
produced from its data before the request can be refused under s 24A of the FOI Act.
Section 17 requires an agency to 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)). 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.
In forming my view as review officer, I have had regard to the following:
i. the scope of your FOI request dated 24 January 2025
1 As the Agency did not make a decision within the statutory processing timeframe, it was taken to have made a
deemed access refusal decision (s 15AC(3) of the FOI Act) and this purported decision has been taken to be
submissions.
2 As it is apparent from your FOI request that you are seeking a document created in accordance with s 17 of the
FOI Act.
2
link to page 3 link to page 3 link to page 3
ii. the Agency’s purported decision of 17 April 2025 and its revised decision of 23
June 2025
iii. the s 17 documents provided to you by the Agency
iv. the FOI Act, in particular ss 17 and 24A
v. 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, in particular paragraphs [3.85] – [3.94]
vi. the parties’ submissions.
The parties’ submissions
In summary, you submit that the Agency’s revised decision is incorrect because you were
provided with the average monthly cost per AAT/ART matter, not the average daily cost.
The Agency has not made submissions following the revised decision that was provided to
you on 23 June 2025.
Discretion not to continue to undertake an IC review
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 satisfied that the IC review application is
frivolous, vexatious, misconceived, lacking in substance or not made in good faith.
Having regard to the scope of your request, the Agency’s revised decision, I am satisfied that
your IC review is lacking in substance because:
• the s 17 document released to you on 23 June 2025 does include the average
expenditure per hearing da
y3 as required by part 1 of your FOI reques
t4
• that document also provides the information sought by the part 2 of your FOI
reques
t,5 therefore
• I consider that the document contains the information you have requested so
continuing to review this matter will not promote the objects of the FOI Act as it will
not facilitate access to further documents for these reasons.
3 In the third paragraph of that document.
4 Reasonably construed as per [3.54] of the FOI Guidelines.
5 Reasonably construed as per [3.54] of the FOI Guidelines.
3
link to page 4
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, because I am of
the view that this IC review application is lacking in substance.
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.
If you disagree with this proposed recommendation, please write to us by
17 September
2025 and advise us of your reasons. These will be taken into account before a decision is
made on whether to finalise this matter under s 54W of the FOI Act. Alternatively, if you no
longer wish to pursue this IC review matter you may withdraw it in writing by that da
te.6
If I do not hear from you by this date your IC review may be finalised under s 54W of the FOI
Act and you will be notified of your review rights.
Yours sincerely
Will Martin
Review Adviser
Freedom of Information Case Management Branch
3 September 2025
6 FOI Act s 54R.
4
