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Decision not to continue to undertake an Information Commissioner
review under s 54W(a)(i) of the Freedom of Information Act 1982
Information Commissioner review applicant
David Wright
Respondent
National Disability Insurance Agency
Decision date
26 September 2025
OAIC reference number
MR25/00938
Respondent reference number
FOI 24/25-1232
Decision
1. I refer to the application made by David Wright (the applicant) for Information
Commissioner review (IC review) of a revised decision by the National Disability
Insurance Agency (the respondent) on 23 June 2025 under the
Freedom of
Information Act 1982 (Cth) (the FOI Act).
2. As a delegate of the Information Commissioner, I have decided to exercise my
discretion not to continue to undertake an IC review under s 54W(a)(i) of the FOI Act.
Background and scope of IC review
3. On 24 January 2025 the applicant made a freedom of information request (FOI
request) to the respondent for information relating to the costs incurred by the
respondent in participating in proceedings before the Administrative Appeals
Tribunal (the AAT) or the Administrative Reviews Tribunal (the ART).
4. As the applicant did not receive a decision on their FOI request within the statutory
processing period, the respondent was deemed to have refused the applicant’s
request on 25 March 2025
.1
1 FOI Act s 15AC(3), noting the impact of an extension of time under s 15AA of the FOI Act.
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
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5. On 17 April 2025, the respondent notified the applicant of its purported decision on
the FOI request. In its purported decision, the respondent created one document in
accordance with s 17 of the FOI Act and decided to release it to the applicant in full.
6. On 23 June 2025, the respondent made a revised decision under s 55G of the FOI Act
to create another document in accordance with s 17 of the FOI Act containing
additional information relevant to the FOI request. This document was released to
the applicant in full.
7. Based on the applicant’s correspondence of 30 June 2025 and 3 September 2025, we
understand that the applicant contends that the document provided to the
applicant on 23 June 2025 does not contain the information they requested
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8. Therefore, the issue to be decided in this IC review is whether the respondent is
obligated in accordance with s 17(1) of the FOI Act to provide the applicant with a
further document that includes the information the applicant maintains is missing.
9. On 3 September 2025, the Office of the Australian Information Commissioner (the
OAIC) review officer responsible for this matter (the review officer) wrote to the
applicant to advise of their intention to recommend to the delegate of the
Information Commissioner that this application for IC review be finalised under
s 54W(a)(i) of the FOI Act on the basis that the application was lacking in substance.
10. That review officer invited the applicant to provide reasons if they disagreed with the
proposed finalisation of this IC review by 17 September 2025.
11. The applicant provided a response on 3 September 2025, which I have considered.
Consideration of requests involving the use of computers
12. In summary, s 24A requires that an agency 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. In relation to information stored in electronic form, s 17 requires an
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 . The relevant law and policy is set out in
Annexure A.
2 The question of whether a discrete document (or documents) containing the information sought exists (s 24A) is
not in issue as it is apparent from the applicant’s FOI request and subsequent correspondence they are
specifically seeking a document created in accordance with s 17 of the FOI Act.
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13. In making my decision, I have had regard to the following:
• the scope of the applicant’s request dated 24 January 2025
• the respondent’s decisions of 17 April 2025 and 23 June 2025, and the
documents created and released to the applicant as a result of these
decisions
• the FOI Act, in particular ss 17 and 24A
• 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] and [3.210] – [3.216]
• relevant AAT decisions, in particular
De Tarle and Australian Securities and
Investments Commission (Freedom of information) [2015] AATA 770, and
• the applicant’s submissions.
The parties’ submissions
14. In summary, the applicant submits that the documents created under s 17 and
released to the applicant do not contain all the information that they requested. This
is because the documents do not contain both a breakdown of the overall average
daily cost per matter incurred by the respondent in participating in AAT or ART
hearings on top of the average daily cost.
15. The respondent has not made submissions. However, the reasons provided in its
revised decision affirms the respondent’s position that it has met its obligations
under ss 17 and 24A of the FOI Act as a result of the further s 17 document it has
provided to the applicant.
Decision not to continue to undertake a review
16. I am a delegate of the Information Commissioner for the purposes of s 54W(a)(i) of
the FOI Act. 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 fai
th.3
3 Set out in
Annexure A.
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17. Having regard to the scope of the applicant’s request, the documents released to the
applicant and the applicant’s submissions, I am satisfied this matter lacking in
substance because:
• it is apparent from the applicant’s request that they are not seeking access to
a discrete document for the purposes of s 24A of the FOI Act
• reasonably construed, the applicant’s request does not import a
requirement for the respondent to specifically outline a ‘breakdown’ of the
overall average daily cost per matter incurred by the respondent in AAT/ART
hearings using the four categories of information set out by the applicant.
Rather, the phrase ‘please include all of the following costs’ used by the
applicant in the FOI request merely identifies the types of costs that were to
be taken into account in calculating the overall figure, it does not require the
respondent provide a separate figure for each type of cost liste
d4
• accordingly, I am satisfied that the document created by the respondent and
released to the applicant on 23 June 2025 meets the terms of the applicant’s
request and that the respondent has met its obligations under ss 17 and 24A
18. In deciding whether to exercise the discretion not to continue to undertake a review,
I have considered that continuing to review this matter will not promote the objects
of the FOI Act by facilitating access to further documents for the reasons set out
above.
19. For these reasons, as a delegate of the Information Commissioner, I have decided to
exercise my discretion not to continue to undertake a review of this application
under s 54W of the FOI Act. I confirm that this IC review is now closed.
20. Review rights are set out below.
Yours sincerely
Meka Larsen
Acting Director, Reviews and Investigations
Freedom of Information Case Management Branch
26 September 2025
4 Noting that the applicant’s request does not use any language asking the respondent to describe, detail, set out,
explain, or include a breakdown of those individual costs.
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Annexure A: Relevant provisions of the FOI Act and FOI Guidelines
Discretion not to review (s 54W(a)(i))
Section 54W(a)(i) of the FOI Act relevantly states that the Information Commissioner may
decide not to undertake (or continue to undertake) and IC review if:
(a) the Information Commissioner is satisfied of any of the following:
(i) the IC review application is frivolous, vexatious, misconceived, lacking in
substance or not made in good faith…
Reasonable steps taken to find documents (s 24A)
Section 24A of the FOI Act requires that an agency 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. The FOI Guidelines state:
The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the
context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason,
not extravagant or excessive, moderate and of such an amount, size or number as is judged
to be appropriate or suitable to the circumstances or purpose.
Agencies and ministers should undertake a reasonable search on a flexible and common-
sense interpretation of the terms of the request. What constitutes a reasonable search will
depend on the circumstances of each request and will be influenced by the normal business
practices in the agency’s operating environment or the minister’s office. At a minimum, an
agency or minister should take comprehensive steps to locate documents, having regard to:
• the subject matter of the documents
• the current and past file management systems and the practice of destruction or
removal of documents, and
• the record management systems in place
• the individuals within an agency or minister’s office who may be able to assist with
the location of documents, and
• the age of the documents.
Information stored in electronic form (s 17)
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.
The FOI Guidelines explain:
Section 17 requires an agency to produce a written document of information that is stored
electronically and not in a discrete written form, if it does not appear from the request that
the applicant wishes to be provided with a computer tape or disk on which the information is
recorded. Examples include a transcript of a sound recording, a written compilation of
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information held across various agency databases, or the production of a statistical report
from an agency’s dataset. The obligation to produce a written document arises if:
• the agency could produce a written document containing the information by using a
‘computer or other equipment that is ordinarily available’ to the agency for
retrieving or collating stored information (s 17(1)(c)(i)), or making a transcript from a
sound recording (s 17(1)(c)(ii)), and
• producing a written document would not substantially and unreasonably divert the
resources of the agency from its other operations (s 17(2)).
If those conditions are met, the FOI Act applies as if the applicant had requested access to the
written document and it was already in the agency’s possession.
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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 review or not to continue to undertake review of your IC review
application 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 the OAIC sending the decision or
determination 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/.
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.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on
the Access our information5 page on
our website.
5 Access our information | OAIC.
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