Decision and reasons for decision of Rocelle Ago, General Manager Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

Freedom of Information - Respondent to process request following removal of practical refusal reason claim

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the National Indigenous Australians Agency (NIAA) of 13 July 2023. I substitute my decision that a practical refusal reason does not exist.
2. The NIAA must now process the applicant's request and notify the applicant of its decision no later than 30 days after it receives this decision.[1]

1. This decision sets aside the access refusal decision of the NIAA in circumstances where the NIAA has proposed a revised request that it would be able to process and the applicant has agreed to revise their request as proposed.

1. On 8 May 2023, the applicant applied to the NIAA for all documents that relate to Community First Development's program and funding for the period 1 October 2021 to 8 May 2023.
2. On 19 May 2023, the NIAA provided the applicant with a s 24AB notice stating that it intended to refuse the request under s 24AA(1)(a)(i) of the FOI Act on the grounds that a practical refusal reason exists, as processing the request would substantially and unreasonably divert the resources of the NIAA from its other operations.
3. Between 25 May 2023 and 16 June 2023, the parties engaged in consultation about the request. During these consultations the applicant revised their request on 2 occasions.
4. On 29 June 2023, the applicant revised the scope of their request for a 3rd time.
5. On 13 July 2023, the NIAA refused the applicant's revised request under s 24AA(1)(a)(i) on the basis that processing the request would amount to a substantial and unreasonable diversion of resources from the NIAA's other operations.
6. On 4 August 2023, the applicant sought IC review of the NIAA's decision under s 54L of the FOI Act.
7. During the course of the IC review, the NIAA proposed a revised request that it would be able to process - restricting the request to documents held by the Program Support and Delivery Team, excluding emails and reducing the date range covered by the request. The applicant agreed to the NIAA's proposal.
8. In an IC review of an access refusal decision, the NIAA bears the onus of establishing that their decision is justified or that I should give a decision adverse to the IC review applicant (s 55D(1)).
9. Based on the information before me, I am satisfied that the practical refusal reason no longer exists.
10. The NIAA must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

General Manager, Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

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 Appeals Tribunal (AAT). The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.

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] On the question of the processing deadlines that now apply, see Fletcher and Prime Minister of Australia [2013] AICmr 11 [33] - [38].