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 22 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 (Freedom of information) [2025] AICmr 74 (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 Information Commissioner review (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 5 December 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 26 September 2020 and concluding on 27 November 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 24 documents in full and 2 documents in part.
3. The applicant sought IC review of the decision on the basis that additional relevant documents should have been located.[4]
4. During this IC review, the OAIC issued a direction[5] and notice[6] 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 two November 2020 emails referenced by the applicant) and requesting evidence of its searches and the outcomes.[7]
5. Following searches conducted in accordance with the OAIC's direction and notice, the NDIA identified an additional 130 documents within scope of the request. It made a revised decision[8] and granted access to 39 documents in full and 57 documents in part, and refused access to 34 documents in full.[9] 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.[10]
10. In making my decision, I have had regard to the following:
    • the NDIA's decision and reasons for decision of 4 January 2021
    • the NDIA's purported internal review decision and reasons for decision of 3 March 2021
    • the NDIA's revised decision and reasons for decision of 22 August 2024
    • the evidence of searches undertaken by the NDIA
    • the FOI Act[11]
    • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[12] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[13] 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[14] and notice[15] 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 130 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 emails sent by a third-party on 5 November 2020 (the November 2020 emails). 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 November 2020 emails, the OAIC consulted with the NDIA in relation to these emails. The NDIA submitted that these emails had been provided to the applicant pursuant to its revised decision.[16] Having reviewed the document bundle provided to the applicant pursuant to the NDIA's revised decision, I am satisfied that the November 2020 emails have been provided to the applicant.
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 a specific third-party who the applicant identified as being a party to relevant correspondence, and that searches were undertaken of:
   • the applicant's NDIS Client Relationship Management (CRM) file
   • NDIA's systems (email, skype, Teams, OneDrive and SharePoint)
   • current electronic document records management system, and
   • hard copy records.[17]
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. 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 the third-party identified by the applicant as being in possession of relevant documents and that that third-party undertook extensive searches and located further documents which were provided 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 21 documents in full and 2 documents in part.

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. For example:

1. On 5 November 2020, NDIA employee [name redacted] received an email from [name redacted] containing a behaviour support plan for uploading into the relevant internal system.
2. On 31 October 2020, NDIA employee [name redacted] sent an email to [name redacted] to introduce themselves and note that they had been assigned to the applicant's plan review.
3. There has not been an assessment regarding the information which the Department constructively holds pursuant to s 6C of the Act, or, in the alternate, the results of the assessment, such as the list of Commonwealth contractors contacted to perform the required searches, had not been provided to the applicant.

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 parts 1 and 2 of the applicant's request for internal review above and decided to grant access to those documents in full.[18]

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.[19]

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 21 documents in full and 2 documents in part) and an additional 3 further relevant documents in its internal review decision (releasing them in full).

[4] The applicant sought IC review on 9 March 2021. They identified two emails in particular that they believe should have been produced by the NDIA (these emails were dated 5 November 2020 and 26 November 2020), and they also requested that the Information Commissioner '...ensure that all documents that fell within the scope of my original request are handed over to me by the Agency'.

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

[8] The revised decision was made on 22 August 2024.

[9] 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.

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

[12] 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).

[16] The NDIA submitted that documents the applicant claimed were missing were in fact located at pages 205 to 208 of the document bundle provided to the applicant pursuant to the NDIA's revised decision.

[17] 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.