Our reference: RQ18/03741
Julie
By email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your formal complaint of 20 December 2018
I refer to your email of 20 December 2018 regarding the decision of the Office of the
Australian Information Commissioner (OAIC) to grant the Department of Veterans’ Affairs
(the Department) a 23 day extension of time (EOT decision) under s 15AB of the
Freedom of
Information Act 1982 (the FOI Act) to process your FOI request. Please accept my apologies
for the delay in responding to your email.
I am the Director of the Intake and Early Resolution, Freedom of information team at the
OAIC. I am responsible for overseeing the processing of extension of time applications made
to the OAIC under the FOI Act. I will respond to the issues you have raised in your formal
complaint.
In responding to your complaint, I have reviewed the OAIC’s extension of time file
RQ18/03741 and spoken with Ms Irene Nicolaou, the OAIC officer who made the EOT decision
in this matter.
Your complaint
In your complaint, you raise concerns regarding the OAIC’s EOT decision in this matter. You
state:
… your decision to rapidly grant a s 15AB extension for this FOI, without consultation with
me, contrary to your own guidelines and the the common law principles of natural justice,
when the Department has previously breached such s 15AB extensions and has multiple
deemed refusals outstanding, is appalling and lacks rationally.
At worse, it displays bad faith, at best, a callous indifference.
I would also point out that s 15AB only can be granted if the FOI is voluminous and complex,
and cannot be abused under other grounds, such as Departmental incompetence or malice,
alleged need to consult undefined others or other claimed grounds.
I request that copy of the Department’s s 15AB application be provided to me, and I formally
complain about your decision, and given notice that I will seek to have it formally reviewed as
it is clear the s 15AB of the Act is being abused and used contrary to the Act. [sic]
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
Background
On 15 November 2018, you made a request to the Department under the FOI Act for a copy of
briefs referred to and quoted from by Senior Executives of the Department during their
appearance at Senate Estimate hearings.
On 17 December 2018, the Department issued a request consultation notice under s 24AB of
the FOI Act on the basis that a practical refusal reason exists under s 24AA(1)(b) of the FOI Act
in that your FOI request does not provide such information as is reasonably necessary to
enable the Department to identity the documents you are requesting. The Department also
noted that to the extent that some documents can identified from your request, processing
your request would substantially and unreasonably divert the Department from its other
operations, thereby resulting in a further practical refusal reason under s 24AA(1)(a)(i) of the
FOI Act. The Department requested that you respond to the request consultation notice by
31 December 2018.
On 18 December 2018, the Department advised you that it would be seeking an extension of
time until 16 January 2019 from the OAIC to make a decision on your request under s 15AB of
the FOI Act. The Department advised that the additional time was required to enable the
Department to review and examine the 345 pages identified as possibly falling within the
scope of your request and to undertake any necessary third-party consultations. The
Department also noted that it was awaiting your response to its request consultation notice
of 17 December 2018 and that further complexities may arise in that the Department’s staff
will not be present during the Department’s holiday shutdown period of 25 December 2018
to 1 January 2019.
On 18 December 2018, the Department applied for a 30 day extension to the 30 day
processing time to make a decision on your FOI request of 15 November 2018. The
application was made on the basis that the processing period was insufficient to adequately
deal with your request because the request is complex.
In its application, the Department said:
This request is considered complex and voluminous because the applicant is requesting
copies of senate estimate brief documents. Due to the broad nature of this request, the
Department is currently undertaking a section 24AB consultation process with the applicant
to clarify precisely which documents are being sought (e.g just the main briefs or surrounding
materials, which could include for example, talking point packages prepared by all sections
in the Department).
To date, the Department has so far received the formal briefing pack which includes 51
relevant files, containing 80 documents (as well as their attachments); which currently
amount to 345 pages. It is possible more documents need to be sourced and assessed
pending the response to the consultation process.
To finalise this request, the Department will need to review and examine the 345 pages for
decision-making and due to the complexities involved, may need to consult with third parties
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and cross-reference with information that may already be publicly available. This is expected
to be a time consuming task but has value in that we want to ensure we are able to release
appropriate material from these documents. It is also likely (pending the outcome of the
consultation) that we will need to source further documents.
We have notified the applicant of our intention to seek an extension with the OAIC. Our
experience is that this applicant is unlikely to agree to a 15AA extension and given the brief
time available before shut down and reduced staffing available during and just after shut
down, we would like to seek an appropriate extension beforehand.
On 20 December 2018, Mr Nicolaou notified you of her decision to grant the Department an
extension of time until 9 January 2019 under s 15AB(2) of the FOI Act. In making the EOT
decision, Ms Nicolaou noted that by granting the request it was anticipated that the
Department will be better placed to finalise the consultation process and provide a well-
reasoned and better managed decision.
On the same date, you made a complaint to the OAIC about Ms Nicolaou’s EOT decision and
requested that you be provided a copy of the Department’s s 15AB application.
Consideration of your complaint
In considering your complaint, I have had regard to:
the Department’s extension of time application dated 18 December 2018
Ms Nicolaou’s decision to grant the Department’s extension of time application
the Guidelines issued by the Australian Information Commissioner under s 93A of
the FOI Act (FOI Guidelines)
relevant sections of the FOI Act
the OAIC’s
service charter.
You have submitted that Ms Nicolaou’s decision was made without you being consulted,
contrary to the OAIC’s guidelines and the common law principles of natural justice.
Paragraphs [3.147] – [3.148] of the FOI Guidelines provide:
An agency or minister applying to the Information Commissioner for an extension of time
under s 15AB should explain why the applicant’s FOI request is complex or voluminous,
including details about:
the scope of the request and the range of documents covered
work already undertaken on the request
any consultation with the applicant concerning length of time
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whether other agencies or parties have an interest in the request
measures to be taken by the agency or minister to ensure a decision is made within
the extended time period and to keep the applicant informed about progress.
Where an agency or minister intends on extending the timeframe for processing the
applicant’s FOI request under s 15AB, the application to the Information Commissioner must
be made before the expiration of the processing period referred to in s 15(5)(b).
The OAIC’s FOI fact sheet 16 addressing extensions of time requests (EOT Fact Sheet)
provides information and guidance on extensions for complex or voluminous requests. The
fact sheet states:
…
If your request is large or complex, the agency can apply to the OAIC for an extension. The
agency must explain why the request is complex or voluminous and provide details about the
work already done on the request and the work still to be completed.
The OAIC will carefully consider the agency's reasoning before granting an extension. The OAIC
will also take into account whether you have already agreed to an extension (see 2 above) and
may seek your views about the agency's extension request if the extension request is for a
particularly long period.
…
The OAIC will usually consult you if the agency has asked for a particularly long extension, or if
it has already applied for other extensions in relation to your request. The OAIC will you’re your
views into account, but the final decision rests with the OAIC. [emphasis added]
I am satisfied that the Department adhered to the above guidance issued by the OAIC by
providing sufficient details about your request and why the Department considered the
request to be complex or voluminous.
I have reviewed the EOT decision in this matter and am satisfied that the decision was
appropriate in the circumstances. I am satisfied that, on the information before the OAIC, the
Department provided sufficient reasons to support their extension of time application and
that further time was required to process your FOI request due to its complex and
voluminous nature, both in terms of the number of documents identified as falling within the
scope of the request and in relation to further consultation being undertaken with you and
potentially required to be undertaken with third parties.
You also contend that Ms Nicolaou’s decision was made contrary to the common law
principles of natural justice. In my view, there is no information before the OAIC to support
such a contention. The rules of natural justice are flexible, requiring fairness in all the
circumstances, including the nature of the power exercised and the statutory provisions
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governing its exercise.1 In
Kioa v West [1985] HCA 81 (
Kioa), Chief Justice Gibbs said at [33] –
[34]:
... the expression “procedural fairness” more aptly conveys the notion of a flexible obligation
to adopt fair procedures which are appropriate and adapted to the circumstances of a
particular case…
The critical question in most cases is not whether the principles of natural justice apply. It is:
what does the duty to act fairly require in the circumstances of the particular case?2
I am satisfied that, on the information before the OAIC, the EOT decision in this matter has
been made in accordance with the principles stated in
Kioa. I am satisfied that the EOT
decision was made in a manner that was fair and appropriate, having regard to the particular
circumstances of the request, and following consideration of the objects of the FOI Act, the
reasons provided by the Department, and FOI Guidelines and the EOT Fact Sheet.
While you may be dissatisfied with the manner in which the extension of time application
was determined in this matter, I am satisfied that the EOT decision was made in accordance
with the FOI Act and the FOI Guidelines. Your review rights are set out below.
Finally, I attach a copy of the Department’s extension of time request dated 18 December
2018 as requested.
I invite you to contact me should you have any questions about this letter.
Yours sincerely
Allan Teves
Director
Intake and Early Resolution, Freedom of Information
31 January 2019
1
Kioa v West [1985] HCA 81 per Gibbs CJ at [11].
2 See also
Kioa v West [1985] HCA 81 per Wilson J at [21].
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Review rights
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.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on th
e Access our information3 page on our
website.
3
www.oaic.gov.au/about-us/access-our-information/.
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