Our reference: RQ16/00557
Ms Mirijana Soldatic
FOI Coordinator
Chief Legal Office
Australian Securities and Investments Commission
GPO Box 9827
SYDNEY NSW 2001
Sent by electronic mail to:
xxxxxxxxxx@xxxx.xxx.xx
Dear Ms Soldatic
Extension of time request under s 15AC
Thank you for your correspondence of 27 January 2016, in which you requested
further time for the Australian Securities and Investments Commission (
ASIC) to
process a request for access to documents made by Mr Ben Fairless under the
Freedom of Information Act 1982 (Cth) (the
FOI Act).
Mr Fairless’s request has been deemed as refused as a decision has not been made
by ASIC within the statutory timeframe. You have therefore sought further time to
process the request.
Contact with Applicant
Prior to making a decision we contacted Mr Fairless to seek his view on ASIC’s
request for an extension to 29 February 2016. On 3 February 2016, Mr Fairless
responded requesting that the Office of the Australian Information Commissioner
(
OAIC) grant a lesser extension, for example 19 February 2016, to process his
request.
Mr Fairless also expressed surprise that ASIC does not appear to have processes in
place for tracking FOI requests and requested that that ASIC prioritise the processing
of his request.
Decision
As a delegate of the Information Commissioner, I am authorised to make decisions
on requests for extensions of time under s 15AC of the FOI Act.
I have decided to grant ASIC further time under s 15AC (5) of the FOI Act
to close of
business 19 February 2016. In coming to this decision we have considered factors
including your advice that:
• Mr Fairless has not sought Information Commissioner review of ASIC’s
deemed refusal decision, or objected to an extension being granted.
GPO Box 5218 Sydney NSW 2001
Enquiries 1300 363 992 • xxxxxxxxx@xxxx.xxx.xx • TTY 1800 620 241 • www.oaic.gov.au
ABN 85 249 230 937
Mr Fairless only disagrees with the length of time requested by ASIC. I give
this significant weight.
• ASIC advises that scope of the request covers one document total ing 44
pages. ASIC indicate that ‘this matter was inadvertently overlooked by the
team allocated the request’. ASIC does not specifically address how it lost
track of this request other than to attribute this to the time of year during
which the request was made. ASIC states that there is no issue with its
processes.
• ASIC has engaged with Mr Fairless once it became aware that his FOI request
has been overlooked. The parties have explored the possibility of dealing
with the request administratively. I also note that ASIC has informed
Mr Fairless that the matter will need to be decided under the FOI Act and
that it would be seeking a s 15AC extension of time from this Office.
However, I note that none of the correspondence between the parties
provided to the OAIC has contained an apology to Mr Fairless for the delay.
• ASIC advises that third party consultation is required prior a decision being
made on the FOI request made by Mr Fairless. ASIC note that ‘should the
third party not object to release, it is likely that the document will be
released to the applicant’. Consultation commenced on 28 January 2016
with the third party being provided with an opportunity to respond by
12 February 2016. I consider that allowing ASIC additional time in order to
finalise the consultation with a third party may result in ASIC being able to
make a decision that releases more information to Mr Fairless. I consider
this to be consistent with the policy of pro-disclosure across government. I
note ASIC’s concern about meeting a deadline of 19 February 2016 if the
third party objects to the release or partial release of the document.
However, I consider Mr Fairless’ request that the matter be prioritised to be
a fair one and in such circumstances an extension until 19 February 2016
should be adequate to make a wel -reasoned FOI decision.
Granting
this extension of time, albeit a shorter one than ASIC has requested,
balances Mr Fairness’ desire to receive documents in the shortest possible time
frame with allowing ASIC the opportunity to make a well-reasoned FOI decision.
I note that this al owance under s 15AC of the FOI Act wil mean that the deemed
refusal is taken never to have applied if ASIC makes a decision and takes all
reasonable steps to provide it to Mr Fairless by
close of business 19 February 2016.
Such an extension can only be granted once and cannot be extended by a variation.
Please note that an extension under s 15AC of the FOI Act means that charges
cannot be reimposed.
A copy of this decision wil be provided to Mr Fairless.
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Contact
If you have any questions about this email, please contact me on (02) 9284 9615
Tuesday and Wednesdays. Alternatively I can be contact by email at
xxx.xxxxxxxx@xxxx.xxx.xx. In al correspondence please include reference number
RQ16/00557.
Yours sincerely
Ben Kirkwood
Investigations Officer
Dispute Resolution Branch
10 February 2016
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Document Outline
