External review of NDIA FOI 24.25 0253
Dear Office of the Australian Information Commissioner,
I hereby request an external review from the Office of the Australian Information Commissioner (OAIC) of the NDIA's response to my FoI request 24.25 0253 - see https://www.righttoknow.org.au/request/a...
I have sought clarification from the NDIA about the information it has provided to me, through seeking an internal review, but the NDIA has refused this request, which has now necessitated my current request to OAIC.
As you will see from my correspondence with the NDIA, I believe that the information provided to me is incorrect and incomplete.
The decision document states that the cost figures provided to me 'specifically includes the costs coded to a hearing attendance and counsel.' Nowhere in my FOI request did I specify that costs should be limted to only hearing attendance and counsel - it was intended to cover all costs. This would need to incorporate:
1) All legal costs (both internal agency legal costs, and the costs of engaging external law services).
2) All costs of engaging expert witnesses (including both those engaged directly by the agency, and those engaged by external law firms that the agency has engaged).
3) Transcription services.
4) Any other costs incurred by the agency (either directly, or indirectly through external law services) in responding to these matters.
I therefore ask that the OAIC investigates this matter in order to provide me with the full and complete information that I have requested from the NDIA.
Yours faithfully,
David Wright
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Our reference: MR25/00180
Agency reference: FOI 24/25-0253
Applicant: David Wright
Respondent: National Disability Insurance Agency
By email: [1][FOI #12767 email]
Your Information Commissioner review application
Good afternoon David,
Why we are writing to you:
I am writing to you to help you make a valid Information Commissioner
review (IC review) application.
On 24 January 2025, you applied for IC review about a Freedom of
Information (FOI) decision made by the respondent referenced at the top of
this email. This was because you indicated you were unhappy with the FOI
decision.
I have enclosed a copy of your IC review application for your reference.
At this time, it appears your application was submitted out of time. The
last day for you to apply for IC review was 28 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:
28 August 2024 FOI request made (due 27 September 2024)
25 September 2024: s 15AA extension of time agreed by applicant (30 days
granted) (due 27 October 2024)
27 October 2024: Deemed refused
29 October 2024: Original decision notified by the Agency out of
jurisdiction
28 December 2024: s 54S timeframe expired
24 January 2025: IC review application received (28 days overdue)
Action required by you before 5 February 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 An application for IC review must be made in writing and should be
made online using the Information Commissioner Review Application form
available on the OAIC website. A copy of the notice of the decision
must be included in the application. The online form can be accessed
via [3]our website [2.7]
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]
o The OAIC expects that applicants and agencies will engage with the IC
review process, with respect and courtesy [2.23]
As such, if you do not provide the information we need for the IC review
application by 5 February 2025, we intend to close your IC review
application.
Assistance
If you are unable to respond by 5 February 2025, you must request more
time at the earliest opportunity and no later than 3 February 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.
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respondent at any time.
If you require assistance regarding this email, please contact us at
[4][email address].
Please quote the reference at the top of this email in all correspondence.
Kind regards,
Georgia
[5][IMG] Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
W: [6]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.
[7]Subscribe to Information Matters
Dear Georgia
This timeline you have provided is incomplete. I have replicated your timeline below, with the omissions now included in CAPITALS:
28 August 2024 FOI request made (due 27 September 2024)
25 September 2024: s 15AA extension of time agreed by applicant (30 days granted) (due 27 October 2024)
27 October 2024: Deemed refused
29 October 2024: Original decision notified by the Agency out of jurisdiction
29 October 2024: I REQUESTED AN INTERNAL REVIEW BECAUSE I INADVERTENTLY MISSED THE PART OF THE DECISION LETTER WHICH SAID 'As this matter was a deemed refusal, internal review of this decision is not an option'. I DID NOT RECEIVE A RESPONSE TO THIS REQUEST.
28 December 2024: s 54S timeframe expired
21 January 2025: BECAUSE THE AGENCY HAD NOT RESPONDED TO MY EMAIL OF 29 OCTOBER, I FOLLOWED IT UP WITH THE FOLLOWING EMAIL 'I have not received an acknowledgment notification for my internal review request of 29 October 2024. Is it being processed?'
24 January 2025: I RECEIVED A RESPONSE FROM THE AGENCY WHICH SAID 'I’m very sorry, your email of 29 October 2024 was not actioned by the triage team. I refer to my letter of 29 October 2024, Attachment B states that as the matter was a deemed refusal, internal review of the decision is not an option, and that your next point of review is with the Information Commissioner.'
24 January 2025: IC review application received (28 days overdue)
While I acknowledge my own oversight in missing the part of the notification letter which said internal review is not an option, I submit that the OAIC should nevertheless process my request, for the following reasons:
1) The refusal of my internal review rights was entirely the fault of the agency as it arose from its failure to process my application within legislated timeframes. I should not be unfairly penalised for this.
2) It was the agency's error in not responding to my email request of 29 October 2024. If it had responded at that time clarifying that I did not have internal review rights, I would have submitted my external review request immediately.
3) In the agency's eventual response, that I received on 24 January 2025, it acknowledged its own fault in not responding to my request, because 'it was not actioned by the triage team'. I should not be unfairly disadvantaged because of an error on behalf of the agency.
4) In that response, the agency advised me that I might seek an external review from the Information Commissioner. If even the agency believed that this was an option available to me, I submit that this should now be honored, such that I am afforded this opportunity.
I consider that these represent extenuating circumstances that warrant the processing of my request by OAIC.
Yours sincerely,
David Wright
Our reference: MR25/00180
Agency reference: FOI 24/25-0253
By email: [FOI #12767 email]
Extension of time request under s 54T of the FOI Act
Dear David,
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 27 October 2024, and you wish to seek review of the decision issued by the Agency on 29 October 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…
• A reason for your delay in applying for IC review was an innocent misunderstanding of your review rights in relation to the Agency's decision.
• The Agency failed to respond to your purported request for internal review of 29 October 2024 until 24 January 2025.
• The Agency's failure to respond to your request may have led to the impression that they were processing your internal review request.
• Upon your review rights being clarified by the Agency, you immediately applied 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.
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Our reference: MR25/00180
Agency/Minister reference: FOI 24/25-0253
FOI Contact Officer
National Disability Insurance Agency
By email: [1][email address]
David Wright
By email: [2][FOI #12767 email]
Information Commissioner review - Notice of commencement
Dear parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
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 #12767 email]
3. https://www.oaic.gov.au/
4. mailto:[email address]
5. https://www.oaic.gov.au/engage-with-us/n...