Our reference: RQ21/00220
Agency reference: LEX 67668
Mr Allan Phu Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Phu
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 6
December 2020 2021 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 also advised that the statutory timeframe had been suspended under
s 24AB of the FOI Act.
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 and considerations follow:
• on 6 December 2020, the Department received your request
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
• on 7 December 2020, the Department commenced searches and identified the work
involved in processing the request would substantially and unreasonably divert
resources of the Department
• on 23 December 2020, you provided the Department a revised scope however it was
received after 5pm when the Christmas/New Year shut down period commenced
• on 4 January 2021, the Department’s FOI team sent a revised search minute to the
relevant line area
• on 18 January 2021, the relevant line area completed its searches
• the Department advised that you have made two separate FOI requests relating to
similar subject matter
• the Department has also received a large volume of requests in relation to similar
subject matter since June 2020 and have devoted a significant amount of resources
to processing these requests, and
• the Department advise due to the Christmas/New Year shutdown period, this caused
a delay in processing your request, and additional time is required to finalise the
request.
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.
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.
If you do not receive a decision by
24 February 2021, you may wish to seek Information
Commissioner review of the Department’s deemed refusal of your reques
t here. Further
information
on applying for IC review is available on the OA
IC website.
Contact
If you have any questions, please contact me on (02) 9284 9847 or via email
xxxxxx.xxxxxx@xxxx.xxx.xx. Please quote OAIC reference number at the top of this email in
all correspondence.
Yours sincerely
Jasmin Clarke
2
Assistant Review and Investigation Advisor
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 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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