Decision not to investigate a FOI complaint under
s 73(b) of the
Freedom of Information Act 1982
Complainant
Ms Emily Lacey
Respondent agency
National Disability Insurance Agency
Decision date
18 June 2024
OAIC reference number
CP24/00588
Agency reference
FOI 23/24-0358
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 about an action made under s 70 of the FOI Act.
2. I have decided not to investigate the complainant’s FOI complaint under
s 73(b) of the FOI Act as I am satisfied the FOI complaint is more appropriately
considered through an IC review.
Background
3. On 3 March 2024, 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 a FOI request submitted to the National Disability
Insurance Agency (the Agency).
Issue raised by complainant
4. The complaint raised the following issue:
• The Agency did not provide a decision within the statutory timeframe, as
required by s 15(5)(b) of the FOI Act.
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Considerations and preliminary inquiries
5. In making my decision, I have had regard to the following:
• the FOI complaint of 3 March 2024,
• the Agency’s deemed access refusal decision dated 27 October 2023, that
is the subject of the FOI complaint,
• the FOI Act, in particular s 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 paragrap
h [11.5].
Decision not to investigate the FOI complaint
6. Under s 73(b) of the FOI Act, I may decide not to investigate a FOI complaint if
the complainant:
i. 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
ii. has not exercised, or did not exercise, the right; and
iii. it would be, or would have been, reasonable for the complainant to
exercise the right.
7. 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.
8. In considering whether to investigate a 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. The outcome the complainant has
sought from the OAIC is to investigate the Agency’s deemed access refusal
decision to withhold documents under s 15AC the FOI Act. I understand the
outcome primarily sought by the complainant is access to documents. This
outcome can only be achieved by reviewing the Agency’s deemed access
refusal decision.
9. Accordingly, the issue raised in the FOI complaint regarding the Agency’s
deemed access refusal decision to withhold documents is more appropriately
considered through the IC review process pursuant to s 73(b) of the FOI Act.
This is consistent with the Information Commissioner’s approach as per the
FOI Guidelines a
t [11.5].
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10. Should the complainant wish to make an application for IC review of the
Agency’s deemed access refusal decision, further information about this
process is available a
t here or further assistance please email
xxxxx@xxxx.xxx.xx.
11. 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 whether
to exercise the discretion not to investigate the FOI complaint, I have
considered that:
• the FOI complaint is more appropriately considered through an IC review
(s 73(b))
• the parties have not provided any additional information that alters my
view above, and
• investigating the FOI complaint will not promote the objects of the FOI Act
(s 3).
Finalisation of the FOI complaint and review rights
12. I confirm the FOI complaint is now finalised and the file is closed. Information
about review rights is set out below.
13. Information about how the OAIC’s handles a FOI complaint can be accessed
on the OAIC’s website
here.
Yours sincerely,
Rocelle Ago
Assistant Commissioner
Freedom of Information
18 June 2024
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link to page 4
ATTACHMENT
Your 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.
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
information1 page on our website
.
1 https://www.oaic.gov.au/about-us/access-our-information/.
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