Freedom of Information - Whether reasonable steps taken to find documents - (CTH) Freedom of Information Act 1982 s 24A

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I affirm the s 55G revised decision (revised decision) of the National Disability Insurance Agency (NDIA) of 28 August 2024.

1. This decision discusses searches (s 24A) in relation to material held by the NDIA. It affirms the NDIA's decision that all reasonable steps were taken to locate documents within the scope of the applicant's request.
2. This decision is made on the same day as the related decision in 'AVJ' and National Disability Insurance Agency (No. 2)(Freedom of information) [2025] AICmr 75 (22 April 2025).

1. Prior to completion of this Information Commissioner review (IC review) the Office of the Australian Information Commissioner (OAIC) received the sad news of the death of the applicant.
2. In contrast to other legislative schemes,[1] the FOI Act does not include express provisions addressing what is to occur in the event of the death of an applicant. Accordingly, it is a matter of discretion, with reference to the circumstances of each individual matter, as to whether an IC review is continued.
3. In deciding to proceed to make a s 55K decision in this matter, I gave significant weight to the fact that the applicant had appointed a representative as their advocate in their original request to NDIA and had requested that this individual manage the FOI request on their behalf.[2] This representative was also nominated to act on behalf of the applicant in their application to the OAIC for IC review. In these circumstances I was satisfied that the applicant's case could be appropriately made on their behalf by their representative.

1. On 26 September 2020, the applicant applied to the NDIA for access to documents, specifically they requested access to the following documents from their National Disability Insurance Scheme (NDIS) file:

...a copy of all information held by the Agency relating to the period beginning on 11 August 2019 and concluding on 25 September 2020, including but not limited to any information which is held by Commonwealth contractors on its behalf.

1. The background to this IC review is set out at Annexure A.
2. The NDIA identified 26 documents within the scope of the request[3] and released 25 documents in full and 1 document in part.[4]
3. The applicant sought IC review of the decision on the basis that additional relevant documents should have been located.[5]
4. During this IC review, the OAIC issued a direction[6] and notice[7] to the NDIA requiring it to conduct further searches for all documents relevant to the scope of the applicant's request (including, but not limited to, any handwritten notes prepared by the person who assessed the applicant's NDIS plan, and documents relating to the emergency planning session undertaken in August 2019) and requesting evidence of its searches and the outcomes.[8]
5. Following searches conducted in accordance with the OAIC's direction and notice, the NDIA identified an additional 119 documents within scope of the request. It made a revised decision[9] and granted access to 35 documents in full and 55 documents in part, and refused access to 29 documents in full.[10] NDIA claimed that some material was irrelevant under s 22 and made exemption claims under ss 47C, 47E(d) and 47F.
6. The applicant submitted to the OAIC that despite the additional documents released to them by the NDIA under its revised decision they still considered that documents were missing.
7. Having reviewed the evidence before me, I am satisfied that the applicant is not seeking review of the exemption claims made by the NDIA in relation to the documents at issue. Therefore, the only issue to be decided in this IC review is whether the NDIA has taken all reasonable steps to identify documents within the scope of the request and that documents cannot be found or do not exist.
8. In submissions to this IC review, the applicant requested that I consider the suitability of the NDIA's decision to delegate the retrieval of relevant records to a specified third-party in circumstances where the applicant questions whether it would be appropriate for that third-party to be in charge of reviewing their own files for documents within the scope of the request. It is outside my remit to make findings on this type of issue, accordingly it is out of scope.
9. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified, or that I should give a decision adverse to the applicant.[11]
10. In making my decision, I have had regard to the following:
    • the NDIA's decision and reasons for decision of 26 October 2020
    • the NDIA's purported internal review decision and reasons for decision of 22 January 2021
    • the NDIA's revised decision and reasons for decision of 28 August 2024
    • the evidence of searches undertaken by the NDIA
    • the FOI Act[12]
    • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[13] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[14] and
    • the parties' submissions.

Whether reasonable steps taken to find documents (s 24A)

1. Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that a document cannot be found or does not exist.
2. Pursuant to the OAIC's direction[15] and notice[16] to the NDIA referred to above, the NDIA provided the OAIC with details and evidence of the searches undertaken in relation to the request and the outcome of those searches. As referred to at paragraph [12], the NDIA located an additional 119 documents and issued a revised decision in relation to those documents. Therefore, the NDIA submitted that it had taken all reasonable steps to identify documents relevant to the applicant's request and that its searches were 'appropriate or suitable to the circumstance or purpose'.
3. In submissions to this IC review, after the NDIA issued its revised decision, the applicant submitted that they considered that there were specific documents missing, in particular a document that was provided in hard copy to a named Agency planner on or about 22 August 2019 and NDIA's copy of an Administrative Appeals Tribunal (AAT) order . They further submitted that they wished to proceed with the IC review as they considered there were further documents to be located.
4. In relation to the applicant's claims for specific documents as referred to above, the OAIC consulted with the NDIA in relation to these documents. The NDIA submitted that:
   • it consulted with the individual planner in question requesting they conduct searches for any documents relevant to the applicant's request including 'the printed summary, handwritten notes and draft plan'
   • the planner and the NDIA's Service Delivery Branch confirmed that all relevant documents regarding planning activities during the timeframe sought in the applicant's request had been uploaded to the applicant's Client Relationship Management (CRM) file, and that all documents had been provided to the applicant pursuant to the NDIA's revised decision[17]
   • the planner confirmed they did not have any handwritten notes, and
   • the NDIA's copy of the AAT order was provided in the document bundle released to the applicant pursuant to the revised decision.[18]
5. I turn now to consider the broader issue of whether the NDIA has taken all reasonable steps to identify all documents relevant to the applicant's request.
6. I have considered the searches evidence provided by the NDIA. These records identified that the NDIA consulted with staff from relevant business areas and also with the individual planner who conducted the applicant's planning meeting in August 2019, and that searches were undertaken of:
   • the applicant's NDIS file
   • NDIA's systems (email, skype, Teams, OneDrive and SharePoint)
   • current electronic document records management system, and
   • hard copy records.[19]
7. Those records also identified the:
   • persons who were consulted and undertook searches
   • dates the searches were undertaken
   • locations searched
   • search terms used
   • outcomes of the searches undertaken, and
   • reasons as to why documents were, or could not be, found by particular business areas or third-parties.
8. In relation to the email of 21 September 2020[20] referred to by the applicant in their request for internal review (see Annexure A), the NDIA submitted that this was provided to the applicant in the original FOI decision of 26 September 2020.[21]
9. Based on the evidence before me, and with consideration of the scope of the applicant's request, I am satisfied that:
   • the NDIA undertook appropriate consultation with relevant business areas and the individual planner in question and that all further documents located by them were released to the applicant pursuant to the NDIA's revised decision, and
   • the NDIA has done all that could reasonably be required of it to find documents relevant to the applicant's request.

1. For the reasons discussed above, I find that the NDIA has taken all reasonable steps to locate documents relevant to the applicant's access request. I am satisfied that further documents cannot be found or do not exist.

The applicant made a request for access to documents held by the NDIA (as referred to at paragraph [7] above.

The NDIA made its decision and granted access to 22 documents in full and 1 document in part (claiming some material was exempt under s 47E(d)). It also claimed that 2 documents contained irrelevant material which was deleted under s 22.

The applicant requested an internal review of the original decision on the basis that they believed additional documents existed within the scope of their request, in particular:

1. Correspondence from [name redacted] in relation to a printed summary of proposed supports on 22 August 2019, including handwritten notes.
2. Correspondence between [name redacted] and [name redacted], on 21 August 2020, in relation to the results of a meeting with her Assistant Director.
3. The original decision did not address s 6C of the Act, in relation to Commonwealth contractors.

The NDIA made its internal review decision. It advised the applicant that it had conducted further searches of its records management systems and consulted with Agency staff likely to hold documents in relation to the request. As a result of these searches it identified an additional 3 documents in scope of the request and decided to grant access to those documents in full.[22]

Whether reasonable steps taken to find documents (s 24A)

Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that it cannot be found or does not exist.

The Act is silent on what constitutes 'all reasonable steps'. The meaning of 'reasonable' in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.

Agencies and ministers should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's operating environment or the minister's office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

• the subject matter of the documents
• the current and past file management systems and the practice of destruction or removal of documents, and
• the record management systems in place
• the individuals within an agency or minister's office who may be able to assist with the location of documents, and
• the age of the documents.[23]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

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.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] For example, s 84 of the Administrative Review Tribunal Act 2024 deals with the death of an applicant.

[2] The NDIA recognised this fact in its revised decision of 22 August 2024.

[3] As set out at Annexure A, the NDIA identified 23 documents as relevant to the request in its original decision (releasing 22 documents in full and 1 document in part) and an additional 3 further relevant documents in its internal review decision (releasing them all in full).

[4] The NDIA deleted material as irrelevant in 4 documents and claimed material in 1 document was exempt under s 47E(d).

[5] The applicant sought IC review on 1 March 2021. They identified one email in particular that they believed should have been produced by the NDIA (this email was dated 21 September 2020) and handwritten notes from the person who assessed their NDIS plan, as well as the printed copy of the draft plan prepared by their advocate that was handed over in August 2019.

[8] These were issued by the OAIC on 29 May 2024.

[9] The revised decision was made on 28 August 2024.

[10] NDIA advised that given some documents were workable databases containing thousands of NDIS participants' information, they extracted the applicant's personal information and created a separate document under s 17.

[12] Section 24A as set out in Annexure B.

[13] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[17] The NDIA referenced Documents 14-14.5 and Document 18 in the documents provided to the applicant pursuant to its revised decision.

[19] In relation to the documents of external providers, I accept the NDIA's submissions that it is the practise of their agency to require providers to upload all documents to a participant's CRM file and that sufficient searches have been conducted in this matter of the applicant's CRM file.

[20] It appears that in the applicant's application for IC review that this correspondence is referred to as being dated 21 September 2020, whereas in the NDIA's purported internal review decision quoting the applicant's request for internal review it is referred to as being dated 21 August 2020.

[21] The NDIA noted that the email can be found within the interaction notes, Document 20, on page 264.