Our reference: RQ20/01653
Agency reference: 189/2020
Chris F
Sent by email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AB
Dear Chris F
On 15 May 2020, the Digital Transformation Agency (the DTA) applied for further time
to make a decision on your FOI request of 13 May 2020 under the
Freedom of
Information Act 1982 (Cth) (the FOI Act).
This application is on the basis that the processing period is insufficient to deal
adequately with your request, because it is complex.
Contact with you
On 21 May 2020, I wrote to you to seek your view on the DTA’s application. You
responded to my inquiries and provided comments that I have taken into
consideration. In summary, you said:
• There is a public interest in release of information about the COVIDsafe APP.
• Some of the reasons provided by DTA are not relevant as to whether an
extension of time should be granted under s 15AB.
• The request is not complex, or complexity claimed by the DTA is merely
hypothetical.
Decision
As a delegate of the Information Commissioner, I am authorised to make decisions
on applications for extensions of time under s 15AB of the FOI Act.
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
I have decided to grant the DTA an extension of time under s 15AB(2) of the FOI Act
to
12 July 2020. I am satisfied that the DTA’s application for an extension of time is
justified, because the request is complex. My reasons follow:
• The request is complex as it may involve consultation with other government
agencies, in particular the Department of Health as the publisher of the COVIDSafe
App.
• The line area responsible for the information is already processing three other
applications on various subjects related to the COVIDSafe App development.
• The DTA has to consider its allocation of FOI requests to relevant officers without
affecting its core and urgent work.
• The DTA usually receives less than 20 FOI requests per year. Consequently the
DTA’s FOI officer is a part time role. However, the DTA currently has six active FOI
request, three of which are related to the COVIDSafe app.
In your submissions, you contend that the DTA’s advice that it has insufficient
resources to process the request within the initial decision period is a factor that is
ordinarily an irrelevant consideration in relation to a decision to grant an extension
of time under s 15AB of the FOI Act.
The FOI Guidelines state at [3.149] that:
Staff absences due to public holidays or agency shutdown periods may be relevant to
whether an extension should be granted, if the particular staff members have skills or
knowledge that may be required to process the request in the normal statutory
timeframe. On the other hand, lack of staff because of inadequate allocation of
resources to FOI processing or failure to assign additional temporary resources to FOI
processing at peak times will not normally justify an extension
in the absence of other
extenuating circumstances.[emphasis added]
I am satisfied that extenuating circumstances exist due to the COVID-19 pandemic,
and this has had a direct affect on DTA and its ability to process this FOI request.
Accordingly, I am satisfied that a 30 day extension of time is appropriate in this
circumstance.
Contact
If you would like to discuss this matter you may contact me on 02 9284 9745 or via
email xxxx.xxxxxxx@xxxx.xxx.xx. In all correspondence please include the reference
number at the top of this letter.
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Yours sincerely
Carl English
Review Adviser (Legal)
Freedom of Information Dispute Resolution
22 May 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 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
th
e 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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