Our reference: RQ21/00119
Agency reference: 39750
Julie
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 54D
Dear Julie
On 13 January 2021, the Department of Veterans’ Affairs (the Department) advised the Office
of the Australia Information Commissioner (the OAIC) that it had not made a decision on
your internal review request of 8 December 2020 within the statutory period provided by the
Freedom of Information Act 1982 (Cth) (the FOI Act). Consequently, s 54D(2) of the FOI Act
deems the Department to have affirmed its original decision.
However s 54D(4) of the FOI Act allows the Information Commissioner to extend the
processing time for an internal review 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 under s 54D(3) of the FOI Act for further time to make a decision on your internal
review request.
Contact with you
On 13 January 2021, I wrote to you to seek your view on the Department’s application.
In summary, your response of 14 January 2021 raised the following:
•  the operation of s 54D of the FOI Act
•  the benefit of a s 54D extension of time being granted is to an agency only
•  that the only reason provided by the Department in applying for this extension of
time is that ‘it has been unable to finalise your request within the initial decision
period’ and
•  that the OAIC should ‘… impose a condition on any granted EOT given to the
Department of Veterans' Affairs in this matter, that it must provide the further
documents it claims are being considered…’.
My consideration of the issues you have raised follows.
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

Operation of s 54D of the FOI Act
Section 54D(1) of the FOI Act sets out the three requirements for s 54D of the FOI Act to apply.
These are:
•  an application for internal review has been made to an agency (s 54D(1)(a))
•  the initial decision period of 30 days since the application was received by the
agency has ended (s 54D(1)(b)), and
•  notice of a decision has not been received by the internal review applicant
(s 54D(1)(c)).
As such, it is only open to an agency to apply for an extension of time under s 54D(3) of the
FOI Act if  the processing period prescribed in s 54D(1)(b) has ended.
You confirmed in your email of 14 January 2021 that the Department was due to make an
internal review decision on 7 January 2021, but the Department did not apply for an
extension of time under s 54D(3) until 13 January 2021. Therefore, it appears that the
requirements for an extension of time under s 54D were met.
Processing of extension of time applications under s 54D of the FOI Act
OAIC decision makers consider each extension of time application on a case-by-case basis.
An extension of time decision is based on all the information before the OAIC at that time.
The decision maker may grant an extension of time if they consider it appropriate in the
circumstances, rather than in consideration of whether granting the extension is of benefit to
one party or another.
In this matter, because the processing time had ended and the Department had not made an
internal review decision, the principal officer of the agency was taken to have affirmed the
original decision (under s 54D(2) of the FOI Act). Because the Department was deemed to
have affirmed the original decision when it failed to make a decision within the statutory
period, there was no legal mechanism for the Department to make an FOI decision in
relation to the additional documents it identified during the further searches conducted as
part of the internal review.
By granting an extension of time in these circumstances, the Department is able to make an
internal review decision that includes consideration of the additional documents identified
in further searches conducted, as the deemed affirmation is taken never to have applied
(s 54D(6)).
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Reasons given by the Department
Your response of 14 January 2021 states:
You state the Department of Veterans' Affairs has relied upon the sole ground of its application
being "because it has been unable to finalise your request within the initial decision period",
however you have provided no evidence or justification or even claim as to why it "has been
unable to finalise" the internal review in a period that other Departments routinely do.
This portion of the consultation email is included to address the requirements of ss 54D(1)(b)
and 54D(1)(c) of the FOI Act, that is, that the processing period has ended and a decision has
not been provided.
The reasons for the Department applying for an extension of time are included further down
in the consultation correspondence. In this case, the Department requested further time to
allow for consideration of additional documents, located as a result of further searches
undertaken during the internal review. I note this is considered further in the below decision.
Imposing a condition
Section 54D(5) of the FOI Act allows the Information Commissioner (or delegate) to impose
any condition that is considered appropriate.
The FOI Guidelines [3.159] provides examples of the types of conditions that may be
imposed as follows:
In allowing further time the Information Commissioner may impose conditions (ss 15AC(6),
51DA(5) and 54D(5)). For example, the Commissioner may require the decision maker to:
•  notify the applicant of the further time allowed
•  provide regular progress reports to the Information Commissioner and the applicant
•  provide a copy of the notice of decision when made to the Information Commissioner.
You have request that the extension of time decision maker:
… a condition on any granted EOT given to the Department of Veterans' Affairs in this matter,
that it must provide the further documents it claims are being considered (otherwise it'll be
just another empty claim) - even if there was no real reason as to why these activities could not
have been completed within the original decision period (as section 54C(3) of the Freedom of
Information Act 1982 (Cth) reasonably expects).
At this time, the OAIC is only considering the Department’s extension of time application.
There is no legislative provision under the FOI Act allowing the Information Commissioner to
request the production of documents from the Department as you have suggested. As such,
it would not be appropriate to impose a condition on an agency to produce a document to
the Commissioner in relation to an extension of time application.
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Decision
As a delegate of the Information Commissioner, I am authorised to make decisions on
applications for extensions of time under s 54D of the FOI Act.
I have decided to grant the Department further time of 21 days to 27 January 2021 to
process your request for an internal review. My reasons follow:
•  in response to your application for internal review, the Department undertook
further searches
•  in undertaking those further searches, the Department identified additional
documents which require consideration, and
•  the Department has contacted you to apologise for not having provided a decision in
relation to this internal review and to confirm the Department is continuing to
process your internal review request.
I have considered the condition you suggested. However, as discussed above, I do not
consider it appropriate to impose a condition upon the Department.
I further note your objections to this extension of time application. Based on the information
currently before the OAIC, I am satisfied that an extension of 21 days is appropriate in these
circumstances. In particular, this will allow the Department time to consider the additional
documents identified as potentially relevant to the scope of your request.
This extension of time under s 54D of the FOI Act means that the deemed affirmation of the
original decision is taken never to have applied if the Department makes a decision on your
request by 27 January 2021.
Such an extension can only be granted once and cannot be extended by a variation.
Contact
If you have any questions about this letter, please contact me on (02) 9284 9721 or via email
xxxxxxx.xxxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference
RQ21/00119.
Yours sincerely

Shelley Napper
Assistant Director
Freedom of Information
19 January 2021

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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 wil 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
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

Extension of time under s 54D