Our reference: RQ19/03665
Agency reference: LEX393
Mr Edward Kerrigan
Sent by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Kerrigan
On 24 December 2019, the Department of Foreign Affairs and Trade (the Department)
advised this office that it had not made a decision on your FOI request of 20 August 2019
within the statutory period provided by the
Freedom of Information Act 1982 (Cth) (the FOI
Act). Consequently, the FOI Act deems that the Department has refused your request.
However, s 15AC of the FOI Act al ows the Information Commissioner to extend the
processing time for an FOI request where the initial decision period has ended and the
agency or Minister has not provided the applicant with notice of a decision. The Department
has applied for further time to finalise your request.
On 16 September 2019, the Department obtained your agreement under s 15AA of the FOI
Act for a 27-day extension of time to 16 October 2019.
The Department advised that the statutory timeframe had been suspended under s 31 of the
FOI Act.
On 21 October 2019, the Department also advised that the statutory timeframe had already
been extended to al ow for consultation in accordance with s 15(6) of the FOI Act. This
extended the decision period to 20 November 2019.
The Office of the Australian Information Commissioner (the OAIC) has previously granted the
Department an extension of time under s 15AB(2) of the FOI Act (OAIC reference:
RQ19/03020). This extended the decision period to 20 December 2019.
On 20 December 2019, the Department sought a further extension of time under s 15AB(2) of
the FOI Act (OAIC reference: RQ19/03622). On 23 December 2019, the Information
Commissioner’s delegate declined the Department’s extension of time application.
Contact with you
On 24 December 2019, I wrote to you to seek your view on the Department’s application. You
responded to my inquiries and provided comments that I have taken into consideration.
1300 363 992
T +61 2 9284 9686
GPO Box 5218
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
Decision
As a delegate of the Information Commissioner, I am authorised to make decisions on
applications for extensions of time under s 15AC(5) of the FOI Act.
I have considered Department’s application, and have decided to decline an extension. My
reasons fol ow:
• on 20 August 2019, the FOI request was received by the Department
• the Department obtained agreement under s 15AA of the FOI Act for an extension of
time from Mr Kerrigan to 16 October 2019
• on 4 October 2019, the Department issued Mr Kerrigan with a charges letter
• on 9 October 2019, the Department processed the charges paid by Mr Kerrigan
• on 21 October 2019, the Department notified Mr Kerrigan of third party consultation
under s 27A of the FOI Act
• on 18 November 2019, the Department sought a 15AB extension of time of 30 days,
from the OAIC, until 20 December 2019
• on 26 November 2019, the OAIC granted the extension of time until 20 December
2019
• on 20 December 2019, the Department sought a further extension of time under
s 15AB of the FOI Act until 9 January 2020
• on 23 December 2019, the OAIC declined the Department’s extension of time
application
• due to an administrative oversight by the Department, the applicant’s payment of
FOI deposit was not duly processed. As a result the FOI clock was inadvertently on
hold for additional 12 days
• the Department has advised that it wil refund the charge to you
• the documents contain material of a sensitive nature which require careful
consideration and analysis
• the Director FPL is reviewing the documents in scope and assessing what material
can be released to you
• the decision-maker requires this additional time to finalise his decision and prepare
a decision letter to you
• the Department submits that due to the significant loss of working days over the
forthcoming Christmas/New Year period the Department wil not be in a position to
deliver outcome due to lack of staffing resources. This has resulted in the
Department requesting additional 10 days to what it had original y proposed in its
s15AB extension request, and
• the extension will al ow the Department’s FOI Section additional time to prepare the
documents for release to you.
The effect of this decision is that the Department is deemed to have refused your FOI
request. You may wish to seek Information Commissioner review of the deemed decision.
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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 extension
under s 15AC of the FOI Act does not mean that charges can be reimposed and any deposit
you have paid should be refunded. However, the Department had advised that it wil refund
the charge to you.
Contact
If you have any questions about this email, please contact me on (02) 9284 9721 or via email
shel xx.xxxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference number at
the top of this letter.
Yours sincerely
Shelley Napper
Assistant Director (A/g)
Freedom of Information
6 January 2020
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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 Court 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 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 fol owing a decision made under the FOI Act. Complaints
usual y 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/reviews-and-complaints/make-an-foi-
complaint/ .
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Document Outline
