Our reference: RQ23/01954
Agency reference: FOI30/100
Weather User By email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
C
c: xxx@xxx.xxx.xx
Extension of time under s 15AB
Dear Weather User
On 24 April 2023, the Bureau of Meteorology (Bureau) applied to the Office of the Australian
Information Commissioner (OAIC) for further time to make a decision on your FOI request of
7 April 2023, under s 15AB of the
Freedom of Information Act 1982 (Cth) (the FOI Act).
This application was made on the basis that the processing period is insufficient to deal
adequately with your FOI request, because it is complex.
The Bureau attempted to obtain an agreement under s 15AA of the FOI Act for an extension
of time from you. The Bureau advised that you refused the request for a 30-day extension.
Contact with you
On 24 April 2023, I wrote to you to seek your view on the Bureau’s application. You
responded to my inquiries and advised that:
I am opposed to this request from the BOM for an extension of time.
In relation to the BOM's responses to the OAIC, please see my each relevant quote (with a
">>") and my response.
>> In the context of the above, the further 30 days is required is process the request in
circumstances where the Bureau (particularly the small team that manages FOI matters) are
dealing with a number of other comparatively complex FOI matters. The 30 days will enable
the Bureau to be in position to process the request, particularly in regards to remaining work
set out in the response to the following question.
This response appears to suggest that:
1) Other requests received by the BOM are comparatively complex - I am unable to influence
the requests made by others, nor am I able to assess them in this forum as they have not
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937
been provided to me. It would appear unreasonable that entity could delay a request from
one individual who should receive information within 30 days on the basis of other requests.
2) There is a small team that manages FOI matters - My view here is that the BOM should be
aware of its FOI obligations and have sufficient capacity of personnel to comply with its legal
obligations. I am unaware of what "small team" relates to, what the ordinary FOI workload is
for this agency over multiple years, and whether there is an attributable peak for this month
that would suggest this statement is valid. This, coupled, with Part 1 may suggest that, if the
default position is to call all matters "complex" but then rely upon "small team" as a
defensive argument, that there may be insufficient resourcing as a baseline (and therefore
seeking to frustrate the objectives of the FOI Act.
I therefore do not agree that this provides a justification.
>> What work is required to finalise the request?... (and whole section)
All information here appears to be the routine steps expected in response to a FOI request.
>> Why is the request considered complex or voluminous? Enquiries being undertaken in the
agency includes locating and review hardcopy archived material to understand whether any
relevant hardcopy materials fall in scope.
Given this is a recent decision by the BOM (no more than several months old) - I find it difficult
to believe that hardcopy information would be relevant. Regardless, should there be
responsive material in hardcopy, I see no reason why electronically available material can not
be prioritised.
>> The Bureau has requested an extension to 6 June 2023. I will take anycomments you may
have to make into account when deciding the application.
Please see my quote above. It should be noted that the subject of this information request is
on a website service that was deprecated without a warning made to the public. It is evident
some form of decision making occurred recently that should be responsive to this request.
However, the FOI Act does implicitly require production of said materials within 30 days of
making a request. An inability to do may suggest that there is a broader issue with its ability
to comply (and therefore for the public to hold agencies to account) and undertake routinely
expected tasks. An extension should not be granted on that basis, and rather should be an
opportunity to assess whether the entity is complying with the intent of the FOI Act.
Decision
As a delegate of the Information Commissioner, I am authorised to make decisions on
applications for extensions of time under s 15AB of the FOI Act.
I have considered Bureau’s application and have decided to decline an extension. My
reasons and considerations follow:
• While the Bureau has advised that the extension ‘is required to process the request
in circumstances where the Bureau are dealing with a number of other
comparatively complex FOI matters’, I note that para 3.155 of the FOI Guidelines
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states that ‘a lack of staff because of inadequate allocation of resources to FOI
processing or failure to assign additional temporary resources to FOI processing at
peak times will not normally justify an extension in the absence of other extenuating
circumstances’. I therefore do not consider it a relevant consideration to the
complexity of the request that the Bureau has other complex matters on foot. This is
also in line with para 3.152 of the FOI Guidelines, which states that ‘the complexity or
volume described in a s 15AB application … does not relate to the complexity and
volume of the aggregated FOI caseload of the agency or minister’.
• I am not satisfied that inquiries as to ‘hardcopy archived material’ are sufficient to
warrant the request being complex for the purposes of s 15AB. Instead, it appears in
the application that these are matters relevant to the ordinary processing of the
request that have been delayed due to resourcing issues.
• In the absence of additional aspects of complexity or volume, I am not satisfied that
the request is complex, nor that the Bureau requires an additional 30 days to deal
adequately with the request on the basis of complexity or volume.
The effect of this decision is that if the Bureau does not make a decision by 8 May 2023, it is
deemed to have made an access refusal decision on your FOI request. However, as per
paragraph 3.163 of the FOI Guidelines, the Bureau continues to have an obligation to provide
a statement of reasons on the FOI request. It will remain open to the Bureau to apply to the
OAIC for further time to deal with the request under s 15AC of the FOI Act if the request
becomes deemed, or to extend the processing time under s 15(6) if a need for consultation
under ss 26A, 27 or27A is identified [before the request becomes deemed].
If the Bureau does not make a decision by 8 May 2023, or you disagree with the decision you
receive, you may wish to seek Information Commissioner revie
w here. Further information
on applying for IC review is available on the OA
IC website. An application for IC review would
need to be made within 60 days of the Bureau’s decision or deemed decision.
Contact
If you have any questions about this letter, please contact me on 1300 363 992 or via email to
xxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference: RQ23/01954.
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Yours sincerely
Noah Harris
Assistant Review Adviser
FOI Regulatory Group
4 May 2023
Review rights
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 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 a
t 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.
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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
the online FOI complaint form if at all possible.
Further information about how to make a complaint can be found published on our website:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-
complaint/ .
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