Our reference: RQ21/00217
Agency reference: LEX67637
Mr Warrick Alexander
Sent by emai
l: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Alexander
On 25 January 2021, the Department of Industry, Science, Energy and Resources (the
Department) advised this office that it had not made a decision on your FOI request of
2 December 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.
The Department attempted to obtain an agreement under s 15AA of the FOI Act for an
extension of time from you. The Department did not receive a response from you.
Contact with you
On 27 January 2021, I wrote to you to seek your view on the Department’s application.
I invited you to provide any comments by 29 January 2021. You have not responded to my
inquiries.
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 to
24 February 2021 to process your
request. My reasons follow:
• Delays have been encountered in processing your FOI request as the Department has
received multiple FOI requests relating to the same subject matter. Due to the large
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
volume of these requests, the Department advises it has faced unavoidable delays in
processing this request.
• The Department was impacted by limited staff availability over the Christmas/New
Year shutdown period.
• The Department have advised significant progress has been made and it is confident
a decision is made within the requested extension.
This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken
never to have applied if the Department makes a decision on your request by 24 February
2021.
Such an extension can only be granted once and cannot be extended by a variation.
If you don’t receive a decision by 24 February 2021, you may wish to seek Information
Commissioner review of the Department’s deemed refusal of your reque
st here. Further
informati
on on applying for IC review is available on the OA
IC website.
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.
Contact
If you have any questions about this email, please contact me on 02 9284 9625 or via email
xxxxxxxxx.xxxxxxxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference
number at the top of this letter.
Yours sincerely
Avanithah Selvarajah
Review and Investigations Adviser
Freedom of Information
1 February 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 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
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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Document Outline
