Our reference: RQ23/03749
Agency reference: LEXD 6570
Mr Jake Gerlach
Sent by email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Gerlach
On 27 June 2023, the Australian Nuclear Science and Technology Organisation (ANSTO)
advised this office that it had not made a decision on your FOI request of 1 May 2023 within
the statutory period provided by the
Freedom of Information Act 1982 (Cth) (the FOI Act).
Consequently, the FOI Act deems that the ANSTO has refused your request.
However, s 15AC of the FOI Act al ows the Information Commissioner to extend the
processing time for an FOI request where the initial decision period has ended and the
agency or Minister has not provided the applicant with notice of a decision. The ANSTO has
applied for further time to finalise your request.
The ANSTO advised that the statutory timeframe had been suspended under s 24AB of the
FOI Act.
Contact with you
On 28 June 2023, I wrote to you to seek your view on the ANSTO’s application. I invited you
to provide any comments by 30 June 2023. You have not responded to my inquiries.
Decision
As a delegate of the Information Commissioner, I am authorised to make decisions on
applications for extensions of time under s 15AC(5) of the FOI Act.
I have decided to grant the ANSTO further time to
26 July 2023 to process your request. My
reasons and considerations fol ow:
• The revised scope of your request still appears broad, as the ANSTO advised:
The revised request is still considerably broad because it would require ANSTO
identifying which scientists has supervisory duties for the 4-year period and then
review emails and other correspondence for any 'instruction' given on the
importance of calibrating pH meters.
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
• I have also considered the steps taken by the ANSTO to date to process your request,
as advised in its application.
• The extension of time sought by the ANSTO does not appear excessive, especial y
where the extension sought, if granted, would be the first and final extension
available to the ANSTO [pursuant to 15AC(9) of the FOI Act].
This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken
never to have applied if the ANSTO makes a decision on your request by 26 July 2023. Such
an extension can only be granted once and cannot be extended by a variation.
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 (including any
extension of time), 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 does not mean that charges can be reimposed and any deposit
you have paid should be refunded.
The effect of this decision is that the ANSTO is deemed to have refused your FOI request. If
you do not received a decision by 26 July 2023 or you disagree with the ANSTO’s decision,
you may wish to seek Information Commissioner revie
w here. Further information on
applying for IC review is available on the OAIC
website.
Contact
If you have any questions about this letter, please contact me on 1300 363 992 or at
xxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference: RQ23/03749.
Yours sincerely
Bernie Lai
Assistant Director
Freedom of Information
7 July 2023
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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 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/reviews-and-complaints/make-an-foi-
complaint/ .
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Document Outline
