Our reference: RQ20/02962
Agency reference: LEX2235
Mr John Smith
Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Smith
On 7 August 2020, the Department of Foreign Affairs and Trade (the Department) advised this
office that it had not made a decision on your FOI request of 6 July 2020 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 allows 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.
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 decided to grant the Department further time of 2 days to
7 August 2020 to process
your request. My reasons follow:
• on 6 July 2020, the Department received your FOI request
• on 8 July 2020, the Department began search and retrieval processes
• on 7 August 2020, the Department issued you with its decision, and
• a number of consultations with line areas were conducted to search for the relevant
documents within the scope of your request, and these searches took an extended
period while the Department determined whether or not documents within the
scope of your request existed.
This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken
never to have applied as the Department made a decision on your request on 7 August 2020.
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
Such an extension can only be granted once and cannot be extended by a variation.
I note that the
Freedom of Information (Charges) Regulations 2019 provide that 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.
Contact
If you have any questions, please contact my colleague Jasmin Clarke on (02) 9284 9847 or
via emai
l xxxxxx.xxxxxx@xxxx.xxx.xx. In all correspondence please include reference number
RQ20/02962.
Yours sincerely
Shelley Napper Assistant Director
Freedom of Information
11 August 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 a
t 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 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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