Decision to decline an extension of time under s 15AC of the Freedom
of Information Act 1982
Agency
Office of the Commonwealth Ombudsman
FOI applicant
Stephen
Date of decision
26 June 2023
OAIC reference number
RQ23/03465
Agency reference number
FOI-2023-10039
Decision
1. I refer to the application made by the Office of the Commonwealth Ombudsman (the
Ombudsman) under s 15AC(4) of the
Freedom of Information Act 1982 (Cth) (FOI Act) for
an extension of time to process Stephen’s (the FOI applicant) request of 20 March 2023
(the FOI request).
2. I am a delegate of the Information Commissioner. I am authorised to make decisions
on applications for further time under s 15AC(5) of the FOI Act.
3. On the basis of the information before me, I have decided to decline the
Ombudsman’s request for further time to deal with the request. A decision on the FOI
applicant’s request therefore remains due by 19 April 2023. My reasons are outlined
below.
Background
4. On 20 March 2023, the FOI applicant made an FOI request to the Ombudsman.
5. The Ombudsman has claimed that:
The scope of the FOI request includes approximately 15 separate documents
which has required and will require consultation with 15 distinct third-parties
under s 27A of the FOI Act. As we need to consult with third-parties, the original
due date of 19 April 2023 has been extended for 30 days, as per s 15(6) of the FOI
Act, until 19 May 2023.
6. However, I note that the Ombudsman did not notify the FOI applicant of a decision on
the FOI request by 19 April 2023. Therefore, on 19 April 2023, the Ombudsman was
deemed to have made an access refusal decision on the FOI request under s 15AC(3) of
the FOI Act.
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7. Noting the Ombudsman’s claim that it only identified the FOI request on 22 May 2023,
it appears that the Ombudsman could not have determined in writing on or before 19
April 2023 that the requirements of ss 26A, 27 or 27A of the FOI Act made it appropriate
to extend the processing period by 30 days. Further, after 19 April 2023, it was not
open to the Ombudsman to retrospectively extend the processing period referred to in
s 15(5)(b) of the FOI Act, which had already ended, by a further period of 30 days under
s 15(6) of the FOI Act.
8. As the Ombudsman’s purported extension of time under s 15(6) was invalid and in the
absence of other valid extensions of time under the FOI Act, the FOI decision was due
to be provided to the FOI applicant on 19 April 2023.
9. On 13 June 2023, the Ombudsman applied to the Information Commissioner for
further time to process the FOI applicant’s request under s 15AC(4) on the basis that
the processing period is insufficient to adequately deal with the FOI request.1 A copy of
the Ombudsman’s reasons is included at
Attachment A.
10. On 13 June 2023, the Office of the Australian Information Commissioner (OAIC)
consulted with the FOI applicant to seek their views on the Ombudsman’s application.
The FOI applicant responded to our enquiries and provided comments which I have
taken into consideration.
Reasons for decision
11. Subsection 15AC(5) of the FOI Act requires that I consider whether it is appropriate to
extend the processing period referred to in s 15(5)(b) of the FOI Act, on the basis that
the agency or Minister requires further time to deal with the request.
12. In declining to extend the processing period under s 15AC(5), I have considered the
following factors:
• Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act, to which I must have regard, in particular [3.164] – [3.167]
• the reasons for delay in making an initial decision
• the period of time sought, and the total estimated processing time
• whether discussions with the applicant about the delay and extension of time
application have occurred
• the desirability of the decision being decided by the agency or minister rather
than by IC review
• the FOI applicant’s views on this extension of time request.
13. On the information before the OAIC, I am not satisfied that the application to extend
the processing period is justified, for the following reasons:
• The Ombudsman has advised that it failed to identify the FOI request until 22
May 2023 ‘[d]ue to a high level of FOI requests, OAIC review requests, related
litigation, staff leave and turnover … following a recent auditing process’,
which appears to be the primary reason for its extension of time application.
1 The Ombudsman has applied to the Information Commissioner under s 15AC(4) for a further period of
‘56 days’, with a proposed new decision date of 14 July 2023, to deal with the request. As the
Ombudsman’s purported extension of time under s 15(6) was invalid, the Ombudsman has effectively
applied for a further period of 86 days to deal with the request.
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However, I am not satisfied that this reason based on the volume of the
Ombudsman’s aggregated workload of meeting its obligations under the FOI
Act justifies further time for the Ombudsman to deal with this particular FOI
request. In any case, the Ombudsman’s claim that it failed to identify the FOI
request until 22 May 2023 appears tenuous because according to publicly
available information:
o On 19 April 2023, the FOI applicant made a further FOI request to the
OAIC, in its capacity as an agency subject to the FOI Act, for the same
documents that he requested in their FOI request of 20 March 2023 to
the Ombudsman.
o On 27 April 2023, the OAIC advised the FOI applicant that his FOI
request of 19 April 2023 had been transferred to the Ombudsman
under s 16(1)(b) of the FOI Act and that ‘[t]he OAIC has contacted the
Ombudsman
which has accepted the transfer of your request’
[emphasis added].
o In their FOI request of 19 April 2023 to the OAIC which had been
transferred to the Ombudsman, the FOI applicant expressly referred to
and cited their present FOI request of 20 March 2023 to the
Ombudsman. Therefore, it appears that by or around 27 April 2023, the
Ombudsman reasonably ought to have been aware that it had not
responded to or actioned the FOI applicant’s FOI request of 20 March
2023.2
• Even after it purportedly identified the FOI request on 22 May 2023, the
Ombudsman failed to take any steps to acknowledge receipt of the FOI
request as required under s 15(5)(a) of the FOI Act or to communicate with the
FOI applicant. It appears that the FOI applicant only became aware that the
Ombudsman had received their FOI request when the OAIC consulted with
them on 13 June 2023 to seek their views on the Ombudsman’s extension of
time application.
• The rationale underlying the provision of the Information Commissioner’s
power under s 15AC(5) of the FOI Act to allow an agency further time to deal
with a request is that the extension may avoid the need for an applicant to
lodge an application for Information Commissioner review (IC review).3 I note
that in this instance, the applicant has advised it already applied for IC review
of the deemed access refusal decision made on 19 April 2023 by the
Ombudsman. The applicant has also indicated to the OAIC their objection to
the requested extension of time on this basis. Therefore, I consider that
allowing further time for the Ombudsman to deal with the request may
interfere with the progress of the IC review process currently underway.
• The extension of time sought by the Ombudsman appears excessive. Its
requested extension of a further period of 86 days, if granted, would yield a
2 Stephen, ‘FOI requests the subject of applications for IC review - Commonwealth Ombudsman’,
Right To
Know, <https://www.righttoknow.org.au/request/foi_requests_the_subject_of_appl_2>.
3 Revised Explanatory Memorandum, Freedom of Information Amendment (Reform) Bill 2010 (Cth) 56.
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total processing period of 116 days, which would be almost quadruple the
processing period of 30 days referred to in s 15(5)(b) of the FOI Act.
• These factors outlined above outweigh the reasons provided in the
Ombudsman’s application about the scope and complexity of the FOI request
(which I have considered). Therefore, I have decided not to allow further time
for the Ombudsman to deal with the request under s 15AC(5) of the FOI Act.
14. The effect of this decision is that the agency was deemed to have made an access
refusal decision on the applicant’s request on 19 April 2023.
15. I note that the
Freedom of Information (Charges) Regulations 2019 provides if an
applicant is not notified of a decision on a request within the statutory time limit the
agency or Minister cannot impose a charge for providing access, even if the applicant
was earlier notified that a charge was payable (regs 7(2), (3)). This extension under
s 15AC of the FOI Act means that charges cannot be imposed and therefore any
deposit the applicant has paid should be refunded.
16. This extension of time matter is now closed. Your review rights are set out below.
17. If you would like to discuss this matter, please contact our office on 1300 363 992 or by
email a
t xxxxx@xxxx.xxx.xx, quoting reference number RQ23/03465.
Bernie Lai
Assistant Director
Freedom of Information
Office of the Australian Information Commissioner
26 June 2023
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Attachment A
The agency’s reasons for requesting an extension of time, as included in the extension
of time request form.
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Review rights
Review by the Administrative Appeals Tribunal
If you disagree with the Office of the Australian Information Commissioner’s (OAIC) decision you can
apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia 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/.
Further information
Further information about how applications to extend the timeframe to process an FOI request are
handled by the OAIC can be found published on our website:
For FOI applicants: How to make an FOI request: Extensions of time
For agencies and ministers: Guidance and advice: Extension of time for processing requests
The OAIC has the power to investigate complaints about an agency’s actions under the
Freedom of
Information Act 1982 (FOI Act). This is a separate process from asking for an Information Commissioner
review following a decision made under the FOI Act. Complaints usually focus on how an agency has
handled your FOI request or complied with other obligations under the FOI Act, rather than the
decision itself.
In some cases, the Information Commissioner's investigation of a complaint may lead to the agency
addressing the issues that you have complained about. In other cases, the Information Commissioner
may make suggestions or recommendations that the agency should implement. The Information
Commissioner can only make non-binding recommendations as a result of a complaint. You and the
agency will be notified of the outcome of the investigation.
FOI complaints to the OAIC must be made in writing. Our preference is for you to use th
e online FOI
complaint form if at all possible.
Further information about how to make a complaint is available on our website:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-complaint/.
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 a
t http://www.ombudsman.gov.au.
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