Decision to grant an extension of time under s 15AC of the
Freedom of
Information Act 1982
Agency
Department of Defence
FOI applicant
James Smith
Date of decision
15 February 2024
OAIC reference number
RQ24/00629
Agency reference number
FOI 577/23/24
Decision
1. On 14 February 2024, Department of Defence (the Department) applied to the
Information Commissioner under s 15AC(4) of the
Freedom of Information Act 1982 (Cth)
(FOI Act) for an extension of 30 days to 20 February 2024 to process James Smith’s (the
FOI applicant) request of 22 December 2023 (the FOI request).
2. As 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. Under s 15AC(5) I have decided to grant the Department further time to deal with the
request to
20 February 2024. My reasons are outlined below.
Background
4. On 22 December 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 December 2023.
5. On 14 February 2024, the Department applied to the Information Commissioner for
further time to process the FOI applicant’s request under s 15AC(4) on the basis that the
processing period is insufficient to adequately deal with the FOI request. A copy of the
Department’s reasons are included at
Attachment A.
Reasons for decision
6. Subsection 15AC(5) of the FOI Act provides that I may allow further time that I consider
appropriate for the agency or Minister to deal with the request.
7. In granting 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
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• whether discussions with the applicant about the delay and extension of time
application have occurred
• the desirability of the decision being decided by the agency or minister rather
than by IC review
8. On the information before the OAIC, I am satisfied that the application for further time
until
20 February 2024 is justified, for the following reasons:
• The further time sought by the Department does not appear to be excessive in
the circumstances.
• Granting this further time will also reinstate the applicant’s right to seek an
internal review of the Department’s decision, and to extend the timeframe for
the applicant to apply for an IC review of the Department’s decision.
9. In granting this further time, 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 and steps taken by the Department to
first request a s 15AA agreement from the FOI applicant.
10. The new due date for the agency’s decision on the FOI request is now
20 February 2024.
11. This further time granted under s 15AC of the FOI Act means that the deemed refusal is
taken never to have applied if the agency makes a decision on the request by
20
February 2024. Such an extension can only be granted once and cannot be extended by
a variation.
12. 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 further time granted under s 15AC of the FOI Act means that charges
cannot be reimposed and any deposit the applicant has paid should be refunded.
13. If the Department does not provide the applicant a decision by
20 February 2024, or the
applicant disagrees with a decision from the agency, it will be open to the applicant to
seek Information Commissioner review (IC review). Further information o
n 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 agency’s decision or deemed decision.
14. This extension of time matter is now closed. Your review rights are set out below.
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15.
16. 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 RQ24/00629.
Yours sincerely,
Hannah Holswilder Director
Freedom of Information Branch
Office of the Australian Information Commissioner
Office of the Australian Information Commissioner
15 February 2024
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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 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 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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