Decision to decline an extension of time under s 15AC of the
Freedom of
Information Act 1982
Department
Department of Employment and Workplace Relations
FOI applicant
Trent Morrison-Francis
Date of decision
13 December 2023
OAIC reference number
RQ23/05916
Department reference number LEX 853
Decision
1. On 6 December 2023, Department of Employment and Workplace Relations (the
Department) applied to the Information Commissioner under s 15AC(4) of the
Freedom
of Information Act 1982 (Cth) (FOI Act) for an extension to 15 January 2024 to process
Mr Morisson-Francis’ (the FOI applicant) request of 31 October 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 Department’s
request for further time to deal with the request. A decision on the FOI applicant’s
request therefore remained due by 30 November 2023. My reasons are outlined below.
Background
4. On 31 October 2023, the FOI applicant made an FOI request to the Department. The FOI
decision was due to be provided to the FOI applicant on 30 November 2023.
5. On 6 December 2023, the Department applied to the Information Commissioner for
further time to process the FOI applicant’s request under s 15AC(4). A copy of the
Department’s reasons are included at
Attachment A.
6. On 7 December 2023, the Office of the Australian Information Commissioner (OAIC)
consulted with the FOI applicant to seek their views on the Department’s application.
The OAIC invited the FOI applicant to provide any comments by 11 December 2023, but
no response has been received.
Reasons for decision
7. Subsection 15AC(5) of the FOI Act provides that I may allow further time that I consider
appropriate for an Department or Minister to deal with the request.
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8. In declining this application for further time 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 Department or minister
rather than by IC review
9. On the information before the OAIC, I am not satisfied that the application for further
time is justified, for the following reasons:
• The FOI applicant’s request does not appear to involve sufficient complexity so
as to warrant extra processing time, based on the limited evidence of any
technical or practical challenges involved in the search and retrieval or
processing of documents.
• The further time sought by the Department appears excessive. Its requested
extension of a further period of 46 days, if granted, would yield a total
processing period of 76 days which would be over two times the processing
period referred to in s 15(5)(b) of the FOI Act. I note that should the applicant
choose to lodge a new FOI request, it would be required to be processed within
a shorter period.
10. The effect of this decision is that the Department remains deemed to have made an
access refusal decision on the applicant’s request on 30 November 2023. If the
Department did not provide a decision to the applicant by this date, the Department
continues to have an obligation to provide a statement of reasons to the applicant on
the FOI request.
11. 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
Department 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.
12. It is open to the applicant to seek Information Commissioner review (IC review) of the
Department’s deemed access refusal decision of 6 December 2023. Further information
on
applying for IC review is available on the OAI
C website. Any application for IC review
would need to be made within 60 days of the Department’s decision or deemed
decision.
13. This extension of time matter is now closed. Your review rights are set out below.
14. If you would like to discuss this matter, please contact our office on 1300 363 992 or by
email at
xxxxx@xxxx.xxx.xx, quoting reference number RQ23/05916.
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Yours sincerely,
Hannah Holswilder
Director
Freedom of Information Branch
Office of the Australian Information Commissioner
13 December 2023
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Attachment A
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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 legal y correct. You can make this application under
the
Administrative Decisions (Judicial Review) Act 1977.
The Court wil 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 Department’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 Department
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 Department
addressing the issues that you have complained about. In other cases, the Information Commissioner
may make suggestions or recommendations that the Department should implement. The Information
Commissioner can only make non-binding recommendations as a result of a complaint. You and the
Department wil 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 t
he online FOI
complaint form if at al 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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Document Outline
