Our reference: RQ22/03618
Agency reference: FOI 22/23-0455
Oliver Lee By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
C
c: xxx@xxxx.xxx.xx
Extension of time under s 15AB
Dear Oliver Lee
On 6 October 2022, the National Disability Insurance Agency (NDIA) applied to the Office of
the Australian Information Commissioner (OAIC) for further time to make a decision on your
FOI request of 6 September 2022 under s 15AB of the
Freedom of Information Act 1982 (Cth)
(the FOI Act).
This application was made on the basis that the processing period is insufficient to deal
adequately with your FOI request, because it is complex and voluminous.
Contact with you
On 17 October 2022, I wrote to you to seek your view on the NDIA’s application. I invited you
to provide any comments by 20 October 2022. The OAIC does not appear to have received a
response from you.
Decision
As a delegate of the Information Commissioner, I am authorised to make decisions on
applications for extensions of time under s 15AB of the FOI Act.
I have considered the NDIA’s application and have decided to decline an extension. My
reasons and considerations follow:
• While the NDIA has claimed the request is complex due to the broad scope and
voluminous nature of the request, the NDIA does not appear to have made an
attempt to consult you regarding the scope of your request until 25 November 2022,
over two months after the request was first received.
• An agency or minister should only seek an extension of time under s 15AB after the
agency or minister has first obtained, or attempted to obtain, the applicant’s
agreement to providing an extension of time under s 15AA, and the agency or
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937
minister has fully utilised the 30 day period available under s 15AA (to the extent the
applicant has agreed to this).1 In this case, the NDIA did not first attempt to seek your
agreement under s 15AA.
• While it is open to an agency to consult an applicant informally at any stage with
respect to narrowing the scope of a request, it is not open to an agency to issue a
request consultation notice outside the statutory processing period, and as at the
date of issue of the s 24AB notice, we had not granted the NDIA any additional
processing time. The request consultation process outlined in s 24AB of the FOI Act
should be utilised at an early stage to avoid any unnecessary processing delays.
• Granting an extension of time in these circumstances would not facilitate access to
documents, which conflicts with the objects of the FOI Act.
The consequence of this decision is that the NDIA is deemed to have refused your request on
6 October 2022, pursuant to s 15AC of the FOI Act.
You may wish to seek Information Commissioner review of the NDIA’s deemed refusal of
reques
t here. Further information
on applying for IC review is available on the OA
IC website. IC review applications must generally be made within 60 days after the decision is deemed to
have been made. Therefore, should you wish to apply for IC review, please include a request
for an extension of time under s 54T of the FOI Act.
Contact
If you have any questions about this letter, please contact me via email to
xxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference: RQ22/03618.
Yours sincerely
Noah Harris
Assistant Review Adviser
FOI Regulatory Group
19 December 2022
1 The FOI Guidelines at [3.151]
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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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