Our reference: RQ21/01280
Agency reference: FOI 20/21-0657
Mr Ben Fairless Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Fairless
On 18 May 2021, the National Disability Insurance Agency (the NDIA) advised this office that it
had not made a decision on your FOI request of 15 April 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 received 15 April 2021.
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.
The NDIA advised that the statutory timeframe had been suspended under s 24AB of the FOI
Act.
The NDIA attempted to obtain an agreement under s 15AA of the FOI Act for an extension of
time from you. The NDIA did not receive a response from you.
Contact with you
On 19 May 2021, I wrote to you to seek your view on the NDIA’s application. I invited you to
provide any comments by 21 May 2021. You have not responded to my inquiries
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 have decided to grant the NDIA further time to
16 June 2021 to process your request.
In coming to this decision, I have considered the following factors:
• On 15 April 2021, the NDIA received your FOI request.
1300 363 992
T +61 2 9284 9686
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
• The NDIA has advised that recently a large number of FOI requests were received
within a short period of time.
• The NDIA further advised that during consultation with you under s 24AB of the FOI
Act, you declined to revise the scope of your request.
• The NDIA conducted initial consultations with relevant business areas. When
conducting an email server search, the NDIA’s data team experienced functionality
problems with the tool required to complete searches. The NDIA’s line areas also
showed difficulty in determining the scope of your request in completing searches.
• The NDIA has also advised that the line area manager expected to identify
documents falling within the scope of your request will also be on leave shortly
which will cause a further delay in processing your request.
• The NDIA has advised that it is in the process of conducting consultations with
several business areas to determine whether third party consultations will be
required.
• The NDIA further advises that it is still in the process of liaising with business areas
and managers to ensure careful consideration of documents captured and
identifying potential sensitivities, with documents only received recently from those
business areas.
• The NDIA considers your request to be sensitive and complex in nature as you are
requesting documents from multiple business areas in relation to business
information and information regarding the NDIA’s functions.
• The NDIA has advised that due to staff engagement involving additional senate
estimates and multiple Committee hearings, this impacted the NDIA’s ability to
conduct FOI consultations and searches.
• A further complexity involved the major structural changes with key staff to address
and resolve the staffing shortage due to the significantly increased workload.
• In order to make an informed and proper decision, the NDIA requires additional time
to determine if third party consultations are required, conduct further consultations
with line areas and finalise the decision.
This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken
never to have applied if the NDIA makes a decision on your request by
16 June 2021.
Such an extension can only be granted once and cannot be extended by a variation.
If you do not receive a decision by
16 June 2021, you may wish to seek Information
Commissioner review of the Department’s deemed refusal of your reques
t here. Further
information
on applying for IC review is available on the OA
IC website.
I note that the
Freedom of Information (Charges) Regulations 2019 provide that 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.
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Contact
If you have any questions, please contact me on (02) 9284 9847 or via email
xxxxxx.xxxxxx@xxxx.xxx.xx. Please quote OAIC reference number at the top of this email in
all correspondence.
Yours sincerely
Jasmin Clarke Assistant Review and Investigation Advisor
Freedom of Information
24 May 2021
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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 a
t 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/ .
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