Application for IC Review of NDIA decision in FOI 24/25-0317.
Dear Office of the Australian Information Commissioner,
I am requesting an external review by the Information Commissioner of my FOI request to the National Disability Insurance Agency (NDIA), reference FOI 24/25-0317.
The full correspondence can be found at this address: https://www.righttoknow.org.au/request/a...
The decision notice can be found at this address: https://www.righttoknow.org.au/request/1...
[ EVENTS ]
- On 6 September 2024 I made an FOI request to the NDIA asking for “a copy of all ‘Advice Support Tool’ documents held by the NDIA”, via the Right To Know website.
- The NDIA were granted a 15 day extension until October 21 2024.
- On 8 November 2024 the NDIA provided a decision notice stating that 67 documents had been identified within the scope, and access to all 67 documents was refused in full under FOI Act s47E(d).
- The decision notice also stated I would not be able to request an internal review by the Agency of the decision, but I could request an external review by the OAIC.
[ REASONS FOR IC REVIEW ]
1. The Agency has failed to acknowledge that 2 of the 67 documents have already been released in full on 22/08/2024 as part of FOI 23/24-1328 (Document 7 and 8).
This request was included on the Agency’s Disclosure Log (as seen here: https://web.archive.org/web/202409100116...), but has since been removed.
FOI 23/24-1328 was requested from the disclosure log on 27 August 2024 by a user on Right To Know and the documents are available publicly at this address: https://www.righttoknow.org.au/request/f...
2. Because 2 of the 67 documents have already been made available previously under FOI 23/24-1328, there should be no reason to withhold the re-release of those documents for FOI 24/25-0317 as they cleary fall within the scope of the request and are already available publicly.
3. One would also suspect, that if these documents carried a real risk of “substantial adverse effect” on the proper and efficient conduct of the operations of the NDIA, that the agency would be able to provide more specific evidence of how the release of the ‘Advice Support Tool’ documents regarding ‘Exercise Physiology’ and ‘Continence’ have caused harm since their release in August under FOI 23/24-1328, to justify their subsequent decision in FOI 24/25-0317 to deny any further release of this type of document.
4. I also find it very difficult to believe, having read the 2 ‘Advice Support Tool’ documents released under FOI 23/24-1328, that the *entirety* of all 67 documents should be exempt under s47E(d).
As such, I am requesting that the Information Commissioner review the decision made by the NDIA in FOI 24/25-0317 and determine whether the 67 ‘Advice Support Tool’ documents can actually be released in full or in part.
I can be contacted at this email address for discussion of these matters. I realise the OAIC prefer to receive IC review requests via the form on the OAIC website. Unfortunately I am not able to use the form in this instance, so I respectfully ask that you please accept this email request for an IC review.
Thank you, and I look forward to your response.
Kind regards,
Emily Lacey
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Commissioner (OAIC).
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Our reference: MR25/00038
Agency reference: FOI 24/25-0317
Applicant: Emily Lacey
Respondent: National Disability Insurance Agency
By email: [1][FOI #12703 email]
Your Information Commissioner review application
Good afternoon Emily,
On 5 January 2025, you applied for IC review about a Freedom of
Information (FOI) decision made by the National Disability Insurance
Agency. This was because you indicated you were unhappy with the FOI
decision.
I have attached a copy of your IC review application for your reference.
Why we are writing to you:
I am writing to you to help you make a valid Information Commissioner
review (IC review) application.
At this time, it appears your application was submitted out of time. The
last day for you to apply for IC review was 20 December 2024. This is
because the timeframe for applying for an IC review (60 days) starts from
when you should have received a decision. To assist, I have included a
summary of the processing timeframe:
o 6 September 2024: FOI request made (due 6 October 2024)
o 26 September 2024: s 15AA extension of time agreed by applicant (15
days granted) (due 21 October 2024)
o 21 October 2024: Deemed refused
o 8 November 2024: Original decision notified by the Agency (out of
jurisdiction)
o 20 December 2024: s 54S timeframe expired
o 5 January 2025: IC review application received (76 days overdue)
Action required by you before 15 January 2025:
o Please tell us why your application was late. The Information
Commissioner may take the following factors into account:
o the length of the delay in applying for IC review
o the reason for the delay
o any action taken by the applicant regarding the decision after the
agency or minister made their decision
o any prejudice to the agency or the minister and the general public due
to the delay and
o the merits of the substantive IC review application.
Participation in IC review process:
You are required to comply with the [2]Direction as to certain procedures
to be followed by applicants in Information Commissioner reviews. If an
applicant fails to comply with a direction of the Information
Commissioner, including the Direction as to certain procedures to be
followed by applicants in Information Commissioner reviews, the
Information Commissioner may in some cases decide not to undertake or
continue to undertake an IC review. The Direction specifically states:
o The applicant must provide the IC with information about the FOI
decision, in particular:
The date of the FOI decision.
o In most cases, an application for IC review must be made within 60
days of the applicant being notified of the agency’s or Minister’s
decision to refuse access to some or all of the documents
requested, or within 30 days of a decision granting access to
documents to another person.
o If an application for IC review is not made within the timeframes
in the FOI Act, applicants may apply to the IC under s 54T of the
FOI Act for an extension of time to apply for IC review. Where an
extension of time is sought, the applicant must provide reasons
which explain why it would be reasonable in all the circumstances
to extend the time to apply for IC review. In considering what is
reasonable in all the circumstances, the IC may take the following
factors into account:
i. the length of the delay in applying for IC review
ii. the reason for the delay
iii. any action taken by the applicant regarding the decision after
the agency or minister made their decision
iv. any prejudice to the agency or the minister and the general
public due to the delay and
v. the merits of the substantive IC review application [2.15]
o Applicants must respond to requests for information from the OAIC
within the time provided unless there are exceptional circumstances
warranting a longer period to respond. If more time is needed, a
request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no
later than 2 days before that period is due to expire. Requests for
more time must explain the exceptional circumstances that necessitate
additional time and propose a new date for response. Approval of an
extension request is at the discretion of the OAIC [2.22]
As such, if you do not provide the information we need for the IC review
application by 15 January 2025 , we intend to close your IC review
application.
Assistance
If you are unable to respond by 15 January 2025, you must request more
time at the earliest opportunity and no later than 13 January 2025.
Requests for more time must explain why you need more time, and you must
tell us when you will be able to provide a response.
Please note: You can withdraw an IC review application at any time. There
is no penalty if you do this. You can also lodge a new FOI request to the
respondent at any time.
If you require assistance regarding this email, please contact us at
[3][email address].
Please quote the reference number MR25/00038 in all correspondence about
this matter.
Kind regards,
Ellie
[4][IMG] Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
W: [5]Enquiry form
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people, cultures
and Elders past and present.
[6]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
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email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[FOI #12703 email]
2. https://www.oaic.gov.au/freedom-of-infor...
3. mailto:[email address]
4. https://www.oaic.gov.au/
5. https://webform.oaic.gov.au/prod?entityt...
6. https://www.oaic.gov.au/engage-with-us/n...
Dear OAIC FOI,
Thank you for your assistance Ellie – I apologise for my misunderstanding of the dates for this process. I have done my best to address the points you have requested here, but please let me know if I have missed anything that you require.
[ REASONS FOR DELAY ]
I had mistakenly calculated the IC review request due date as beginning from 8 November 2024, the date I received decision notice from the NDIA, which would set the 60 days expire on 7 January 2024.
I had come to this conclusion because:
1. FOI Act s54S(1) states, "An IC review application in relation to a decision covered by subsection 54L(2) (access refusal decisions) must be made within 60 days after the day notice of the IC reviewable decision was given under section 26", and I had not received any notice from the NDIA about a decision until November 8 2024.
2. The Decision Notice letter I received from the NDIA specifically advised that I had 60 days beginning on my receipt of the letter, stating, "If you wish to have the decision reviewed by the OAIC, you may apply for the review, in writing, or by using the online merits review form available on the OAIC’s website at www.oaic.gov.au, within 60 days of receipt of this letter." (page 4)
3. I was not appropriately informed by the NDIA that a deemed decision had occurred upon conclusion of the statutory decision period on 21 October 2024.
- The 8 November 2024 Decision Notice letter does not specify that the deemed refusal decision had occurred on 21 October 2024, or that the 8 November 2024 decision to deny access under s47E(d), which was given the most substantial attention as a "decision" in the notice, wasn't actually the decision that my appeal rights were tied to.
- The notice I received in November only mentions 21 October 2024 when it states, "Extension of time [...] [The OAIC] granted us a 15-day extension of time under section 15AB of the FOI Act, making 21 October 2024 the new date to provide you with a decision on access". There is no further context regarding the dates relevance.
- And the only time the word "deemed" was used in the notice is in 'Attachment A' where the NDIA have detailed my review rights, stating, "As this matter was a deemed refusal, internal review of this decision is not an option."
Because of these factors, I believed I was able to make an appeal to the OAIC for an Information Commissioner Review for this FOI request up until 7 January 2024, to revisit the FOI decision made by the Agency on 8 November 2024. This resulted in my review application mistakenly being 16 days late, made on day 76 after the deemed decision that occurred silently on 21 October 2024.
Additionally, I apologise that, even without the date mixup, I was cutting it close with my application being made on (what I thought was) day 58. After receiving the decision it took some time for me to properly consider the Agency's perspective/reasons for the s47E(d) refusal decision in these circumstances, and whether or not I wanted to pursue a review.
Ultimately I've concluded that I believe the NDIA's decision to refuse the all of documents in full was excessive, that the speculative risk of harm has been overstated (especially since professional discretion and evidence-based assessments are still required in practice), and that release of these documents is within the public interest to promote greater transparency and accountability of agency decision making regarding NDIS supports; particularly in light of the recent NDIS legislation amendments that took effect on October 3rd 2024.
For all of the above reasons, I respectfully request that an extension of time is granted by the Information Commissioner, to allow for an IC Review of FOI 24/25-0317 (OAIC MR25/00038) to proceed despite the delay in my application delay.
If there is any further information I can provide to aid in receiving the extension, or to clarify why I disagree with the NDIA's FOI decision, please do not hesitate to contact me again at this address.
Thank you for your attention to this matter. I look forward to hearing from you again.
Kind regards,
Emily Lacey
Dear Ellie,
I hope this email finds you well.
I am contacting you to enquire about my application for review, and whether it has been granted an extension and accepted by the information commissioner. Is there an update available at this stage?
Please let me know if there is anything else I can do.
Yours sincerely,
Emily Lacey
Our reference: MR25/00038
Agency reference: FOI 24/25-0317
By email: [FOI #12703 email]
Extension of time request under s 54T of the FOI Act
Dear Emily,
Thank you for your email, and I apologise for my delay in responding.
I refer to your request for an extension of time (s 54T) to seek Information Commissioner review (IC review) of the decision deemed to be made by the National Disability Insurance Agency (the Agency) under the Freedom of Information Act 1982 (the FOI Act).
As noted in our previous correspondence to you inviting your application for extension under s 54T, your IC review application was received outside of the prescribed statutory timeframe. I note that a deemed refusal decision occurred on 21 October 2024, and you wish to seek review of the decision issued by the Agency on 8 November 2024.
As a delegate of the Information Commissioner, I am authorised to make decisions on requests for extensions of time under s 54T of the FOI Act.
I have considered the reasons provided in support of your request for an extension of time. In particular, I have considered:
• It appears you were unaware that the deemed refusal decision was the correct IC reviewable decision and that the timeframe for applying for IC review began on the date of the deemed access refusal decision.
• You were incorrectly advised by the Agency that the timeframe for applying for IC review commenced on 8 November 2024, when in fact it began on 21 October 2024.
• Your IC review application was made within 60 days of 8 November 2024, which is the date you were notified of a decision on your request by the Agency and the date that you believed marked the commencement of the timeframe for applying for IC review.
• The length of the delay in applying for IC review is not a significant period.
In light of this, I have decided under s 54T of the FOI Act to grant your extension request.
Based on the information before the OAIC, I am satisfied that granting an extension of time under s 54T of the FOI Act is reasonable in all the circumstances.
As such, your IC review is taken to have been lodged within the statutory timeframe. We will write to you regarding the progress of your IC review in due course.
If you would like to discuss this matter, I can be reached by email at [email address]. Please quote the reference number at the top of this email in all correspondence.
Review rights
Judicial review
If you disagree with the OAIC’s 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 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 [email address]. More information is available on the Access our information page on our website.
Kind regards
Will Martin (he/him)
Intake & Triage Officer
Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email address]
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.
Subscribe to Information Matters
-----Original Message-----
From: Emily Lacey <[FOI #12703 email]>
Sent: Tuesday, 4 February 2025 12:58 PM
To: OAIC - FOI DR <[email address]>
Subject: Re: OAIC – Response Required by 15 January 2025 - MR25/00038 – Your Information Commissioner review application about the National Disability Insurance Agency [SEC=OFFICIAL]
**************************************************************************
CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you recognise the sender and know the content is safe.
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Dear Ellie,
I hope this email finds you well.
I am contacting you to enquire about my application for review, and whether it has been granted an extension and accepted by the information commissioner. Is there an update available at this stage?
Please let me know if there is anything else I can do.
Yours sincerely,
Emily Lacey
-----Original Message-----
Our reference: MR25/00038
Agency reference: FOI 24/25-0317
Applicant: Emily Lacey
Respondent: National Disability Insurance Agency
By email: [1][FOI #12703 email]
Your Information Commissioner review application
Good afternoon Emily,
On 5 January 2025, you applied for IC review about a Freedom of Information (FOI) decision made by the National Disability Insurance Agency. This was because you indicated you were unhappy with the FOI decision.
I have attached a copy of your IC review application for your reference.
Why we are writing to you:
I am writing to you to help you make a valid Information Commissioner review (IC review) application.
At this time, it appears your application was submitted out of time. The last day for you to apply for IC review was 20 December 2024. This is because the timeframe for applying for an IC review (60 days) starts from when you should have received a decision. To assist, I have included a summary of the processing timeframe:
o 6 September 2024: FOI request made (due 6 October 2024) o 26 September 2024: s 15AA extension of time agreed by applicant (15 days granted) (due 21 October 2024) o 21 October 2024: Deemed refused o 8 November 2024: Original decision notified by the Agency (out of
jurisdiction)
o 20 December 2024: s 54S timeframe expired o 5 January 2025: IC review application received (76 days overdue)
Action required by you before 15 January 2025:
o Please tell us why your application was late. The Information Commissioner may take the following factors into account:
o the length of the delay in applying for IC review
o the reason for the delay
o any action taken by the applicant regarding the decision after the agency or minister made their decision
o any prejudice to the agency or the minister and the general public due to the delay and
o the merits of the substantive IC review application.
Participation in IC review process:
You are required to comply with the [2]Direction as to certain procedures to be followed by applicants in Information Commissioner reviews. If an applicant fails to comply with a direction of the Information Commissioner, including the Direction as to certain procedures to be followed by applicants in Information Commissioner reviews, the Information Commissioner may in some cases decide not to undertake or continue to undertake an IC review. The Direction specifically states:
o The applicant must provide the IC with information about the FOI decision, in particular:
The date of the FOI decision.
o In most cases, an application for IC review must be made within 60 days of the applicant being notified of the agency’s or Minister’s decision to refuse access to some or all of the documents requested, or within 30 days of a decision granting access to documents to another person.
o If an application for IC review is not made within the timeframes in the FOI Act, applicants may apply to the IC under s 54T of the FOI Act for an extension of time to apply for IC review. Where an extension of time is sought, the applicant must provide reasons which explain why it would be reasonable in all the circumstances to extend the time to apply for IC review. In considering what is reasonable in all the circumstances, the IC may take the following factors into account:
i. the length of the delay in applying for IC review
ii. the reason for the delay
iii. any action taken by the applicant regarding the decision after the agency or minister made their decision
iv. any prejudice to the agency or the minister and the general public due to the delay and
v. the merits of the substantive IC review application [2.15]
o Applicants must respond to requests for information from the OAIC within the time provided unless there are exceptional circumstances warranting a longer period to respond. If more time is needed, a request for an extension of time must be made to the OAIC at the earliest opportunity within the period provided for response, and no later than 2 days before that period is due to expire. Requests for more time must explain the exceptional circumstances that necessitate additional time and propose a new date for response. Approval of an extension request is at the discretion of the OAIC [2.22]
As such, if you do not provide the information we need for the IC review application by 15 January 2025 , we intend to close your IC review application.
Assistance
If you are unable to respond by 15 January 2025, you must request more time at the earliest opportunity and no later than 13 January 2025.
Requests for more time must explain why you need more time, and you must tell us when you will be able to provide a response.
Please note: You can withdraw an IC review application at any time. There is no penalty if you do this. You can also lodge a new FOI request to the respondent at any time.
If you require assistance regarding this email, please contact us at [3][email address].
Please quote the reference number MR25/00038 in all correspondence about this matter.
Kind regards,
Ellie
[4][IMG] Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
W: [5]Enquiry form
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.
[6]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may be confidential information, and may also be the subject of legal professional privilege. If you are not the intended recipient any use, disclosure or copying of this email is unauthorised. If you received this email in error, please notify the sender by contacting the department's switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any attachments.
References
Visible links
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2. https://www.oaic.gov.au/freedom-of-infor...
3. mailto:[email address]
4. https://www.oaic.gov.au/
5. https://webform.oaic.gov.au/prod?entityt...
6. https://www.oaic.gov.au/engage-with-us/n...
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Our reference: MR25/00038
Agency/Minister reference: FOI 24/25-0317
FOI Contact Officer
National Disability Insurance Agency
By email: [1][email address]
Emily Lacey
By email: [2][FOI #12703 email]
Information Commissioner review - Notice of commencement
Dear Parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
As outlined in the notice, it appears that the National Disability
Insurance Agency’s decision dated 8 November 2024, was not made within the
statutory timeframe. As such, the IC reviewable decision remains the
National Disability Insurance Agency’s deemed access refusal decision of
21 October 2024. The purported decision, taken to be a submission, cannot
be considered a variation of an access refusal decision under s 55G of the
FOI Act. Should the National Disability Insurance Agency decide to grant
access during the IC review process, this must be made in accordance with
s 55G of the FOI Act.
The OAIC requires the agency to engage with applicants to resolve or
narrow the issues in dispute. Applicants are encouraged to actively
communicate with the agency to facilitate this engagement.
Please note, Annexure A and B of the notice provide further information
about the obligations of parties during the IC review process.
Kind regards,
[3][IMG] Ishraq Quashem
Casework Support Officer
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [4][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[5]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[email address]
2. mailto:[FOI #12703 email]
3. https://www.oaic.gov.au/
4. mailto:[email address]
5. https://www.oaic.gov.au/engage-with-us/n...