Decision to decline an extension of time application under s 15AB of
the Freedom of Information Act 1982
Agency
Department of Defence
FOI applicant
MBV
Date of Decision
31 July 2023
OAIC reference number
RQ23/04142
Agency reference number
FOI 743/22/23
Decision
1.
I refer to the application made by Department of Defence (the Department) under s
15AB(1) of the
Freedom of Information Act 1982 (Cth) (FOI Act) for an extension of time
to process MBV’s (the FOI applicant) request of 23 May 2023 (the FOI request).
2.
As a delegate of the Information Commissioner, I am authorised to make decisions on
extensions of time applications made under s 15AB(2) of the FOI Act.
3.
On the information before the Information Commissioner, I have decided to decline
the Department’s request to extend the processing period. A decision on the FOI
applicant’s request therefore remains due by 22 July 2023. My reasons are outlined
below.
Background
4.
On 23 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 22 July 2023.
5.
On 21 July 2023, the Department applied to the Information Commissioner for further
time to process the FOI applicant’s request under s 15AB(1) of the FOI Act, 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.
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
Reasons for decision
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 declining to extend the processing period 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 scope of the FOI request
• 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 not satisfied that the application to extend
the processing period is justified, for the fol owing reasons:
• The FOI applicant’s request does not appear particularly complex, based on the
nature of the documents requested, the limited range and number of documents
captured by the request, and the limited evidence of any technical or practical
chal enges involved in the processing of the request.
• In accounting for the work required to complete the request, the Department has
submitted that:
In order to ensure a robust decision is made for this request, the decision maker will
be required to consider legal advice and advice received from subject matter
experts.
Having already extended the processing timeframe to 60 days by way of s15AA of
the FOI Act and relied upon this extension to ensure a ‘robust decision’ was made
in this initial extension of time request, the Department has not adequately
justified why an additional extension of 21 days is necessary to consider legal
advice, which should already have been undertaken in the processing of this
request.
• Additional y, while I acknowledge the Department’s submissions regarding its
current resourcing chal enges and the steps being taken to assign additional FOI
resourcing, there do not appear to be other extenuating circumstances to
demonstrate that the FOI applicant’s request is otherwise sufficiently complex for
the Department to deal with so as to justify an extension under s 15AB(2).
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9.
In declining this extension, I have also considered the limited available evidence of
work undertaken by the Department to process the FOI request to date, limited
explanation as to the steps involved, and processing time required, to finalise the
request.
10. The Department must provide the FOI applicant with a decision by 22 July 2023.
11. If the Department does not provide the FOI applicant a decision by 22 July 2023, the
FOI applicant may seek review by the Information Commissioner of the Department’s
deemed access refusal decision of 22 July 2023. Further information o
n applying for IC
review is available on the OAI
C website. Any application for IC review should 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 wish to discuss this matter, please contact us by email a
t xxxxx@xxxx.xxx.xx
quoting reference number RQ23/04142.
Yours sincerely
Thomas Hanaee
Assistant Review Adviser
Freedom of Information Branch
31 July 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 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 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 all possible.
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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 .
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
