Decision to grant an extension of time under s 15AB of the
Freedom of Information Act 1982
Agency
Australian Broadcasting Corporation
FOI applicant
Mr Simon Harris
Date of decision
5 February 2024
OAIC reference number
RQ24/00409
Agency reference number
ABC FOI 202324-042
Decision
1.
I refer to the application made by the Australian Broadcasting Corporation (ABC)
under s 15AB(1) of the
Freedom of Information Act 1982 (Cth) (FOI Act) for an extension
of time to process Mr Simon Harris’s (the FOI applicant) request of 26 November 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
previously granted to the agency by 16 days to
9 February 2024. My reasons are
outlined below.
Background
4.
On 26 November 2023, the FOI applicant made an FOI request to the ABC. The FOI
decision was due to be provided to the FOI applicant on 24 January 2024.
5.
On 24 January 2024, the ABC 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
and/or voluminous. A copy of the ABC’s reasons is included at Attachment A.
6.
On 25 January 2024, the Office of the Australian Information Commissioner (OAIC)
consulted with the FOI applicant to seek their views on the ABC’s application. The OAIC
invited the FOI applicant to provide any comments by 30 January 2024, but no response
has been received.
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
7.
Please note that, although the ABC’s email to the FOI applicant of 3 February 2024
states that ‘ The ABC has noted your response to the OAIC, of 1 February, granting the
ABC an extension of processing time until Friday 9 February.’, the OAIC records show
that the OAIC did not receive a response from the FOI applicant on 1 February 2024.
8.
When an agency applies to the Information Commissioner for an extension of time
under s 15AB(1) of the FOI Act, it ordinarily proposes a new due date for notifying a
decision to an FOI applicant. Notwithstanding the FOI applicant ‘granting the ABC an
extension’, in considering the s 15AB(1) application, it remains at the Information
Commissioner’s discretion under s 15AB(2) to ‘extend the period by a further period of
30 days, or such other period as the Information Commissioner considers
appropriate.’
Reasons for decision
9.
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.
10. In granting this extension of time under s 15AB(2), 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 [3.150] – [3.155]
•
the scope of the FOI request
•
the ABC’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]
•
any extension to the processing timeframes utilised under s 15(6)
•
the work already undertaken, and still required, to finalise the request.
11. On the information before the OAIC, I am satisfied that an extension to the processing
period until
9 February 2024 is justified, for the following reasons:
• Based on the scope of the FOI applicant’s request and the ABC’s submissions, I am
satisfied that the request is complex, based on the challenges involved in search
and retrieval of the documents and the ABC’s advice that :
‘the complexity is liaising with various internal parties who have competing
priorities and who have been on leave for an extended period.’
•
Based on the Department’s submissions that the FOI applicant’s request captures
approximately 220 documents, I am satisfied the request is also voluminous in
nature.
2
12. In granting this extension, I have also considered the work already undertaken by the
ABC to finalise the request, measures taken by the ABC to ensure a decision is made
within the extended time period, steps taken by the ABC to first obtain a 15AA
agreement from the FOI applicant and/or to utilise relevant extension of time
provisions available under the FOI Act to allow for third party consultation and the
steps taken by the ABC to keep the FOI applicant informed of progress.
13. The ABC must provide the FOI applicant with a decision by 9 February 2024.
14. If the ABC does not provide the FOI applicant a decision by 9 February 2024, the FOI
applicant may seek review by the Information Commissioner of the ABC’s deemed
access refusal decision of 9 February 2024. Further information
on applying for IC
review is available on the OA
IC website. Any application for IC review would need to be
made within 60 days of the ABC’s decision or deemed decision. It also remains open to
the ABC to apply for a further extension of time from the Information Commissioner if
considered appropriate.
15. This extension of time matter is now closed. Your review rights are set out below.
16. If you would like to discuss this matter, please contact our office by email at
xxxxx@xxxx.xxx.xx, quoting reference number RQ24/00409.
Yours sincerely,
Lakshmi Gopinath
Assistant Director
Freedom of Information Branch
5 February 2024
3
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 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
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 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.
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/your-freedom-of-information-
rights/freedom-of-information-complaints/make-an-foi-complaint .
5
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 .
6
