Decision to grant an extension of time under s 15AB of the
Freedom of Information Act 1982
Agency
Department of Infrastructure, Transport, Regional
Development, Communications and the Arts
FOI applicant
Mr Andrew Terhorst
Date of decision
15 August 2023
OAIC reference number
RQ23/04444
Agency reference number
FOI 23-279
Decision
1.
On 14 August 2023, Department of Infrastructure, Transport, Regional Development,
Communications and the Arts (the Department) applied to the Information
Commissioner under s 15AB(1) of the
Freedom of Information Act 1982 (Cth) (FOI Act)
for an extension of 4 days to 18 August 2023 to process Mr Andrew Terhorst’s (the FOI
applicant) request of 16 May 2023 (the FOI request).
2.
As a delegate of the Information Commissioner, I am authorised to make decisions on
extension of time applications under s 15AB(2) of the FOI Act.
3.
Under s 15AB(2) of the FOI Act, I have decided to extend the processing period by 4
days to 18 August 2023. My reasons are outlined below.
Background
4.
On 16 May 2023, the FOI applicant made an FOI request to the Department. The FOI
decision was due to be provided to the FOI applicant on 16 May 2023.
5.
On 14 August 2023, the Department applied to the Information Commissioner for
further time to process the FOI applicant’s request under s 15AB(1) on the basis that
the processing period is insufficient to adequately deal with the FOI request, because
it is complex. A copy of the Department’s reasons is included at
Attachment A.
Reasons for decision
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
6.
Subsection 15AB(2) of the FOI Act requires that I consider whether the application is
justified on the basis that the processing period referred to in s 15(5)(b) is insufficient
for dealing with the request, on the basis that the request is complex or voluminous.
7.
In granting this extension of time under s 15AB(2), I have considered the fol owing
factors:
• Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act, to which I must have regard, in particular [3.150] – [3.155]
• the Department’s reasons for seeking an extension
• whether an agreement to extend the processing period under s 15AA of the FOI
Act has first been attempted or obtained by the Department
• the work already undertaken, and still required, to finalise the request
8.
On the information before the OAIC, I am satisfied that an extension to the processing
period until
18 August 2023 is justified, for the fol owing reasons:
• Based on the Department’s submissions, I am satisfied that the request is
complex, based on chal enges involved in the search and retrieval of any relevant
documents, particularly last minute technical errors arising in the processing of
the request, and difficulties incurred in obtaining timely responses from business
areas or consulted third parties.
9.
In granting this extension, I have also considered the work already undertaken by the
Department to finalise the request, measures taken by the Department to ensure a
decision is made within the extended time period, steps taken by the Department to
first obtain a 15AA agreement from the FOI applicant, and steps taken by the
Department to keep the FOI applicant informed of progress.
10. The Department must provide the FOI applicant with a decision by 18 August 2023.
11. If the Department does not provide the FOI applicant a decision by 18 August 2023 the
FOI applicant may seek review by the Information Commissioner of the Department’s
deemed access refusal decision of 18 August 2023. Further information o
n applying for
IC review is available on the OAIC
website. Any application for IC review would need to
be made within 60 days of the Department’s decision or deemed decision. It also
remains open to the Department to apply for a further extension of time from the
Information Commissioner if considered appropriate.
12. This extension of time matter is now closed. Your review rights are set out below.
13. If you would like to discuss this matter, please contact our office by email at
xxxxx@xxxx.xxx.xx, quoting reference number RQ23/04444.
2
Thomas Hanaee
Assistant Review Adviser
Office of the Australian Information Commissioner
15 August 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.
4
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 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 legal y 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 fol owing a decision made under the FOI Act. Complaints
usual y 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
the online FOI complaint form if at al possible.
Further information about how to make a complaint can be found published on our website:
https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-
rights/freedom-of-information-complaints/make-an-foi-complaint .
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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 .
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Document Outline
