Our reference: RQ21/02861
Agency reference: FOI 21-77
Mr Phillip Sweeney Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Mr Sweeney
On 17 September 2021, the Australian Prudential Regulation Authority (the Agency) advised
this office that it had not made a decision on your FOI request of 17 June 2021 within the
statutory period provided by the
Freedom of Information Act 1982 (Cth) (the FOI Act).
Consequently, the FOI Act deems that the Agency 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 Agency has
applied for further time to finalise your request.
The Agency previously obtained your agreement under s 15AA of the FOI Act for a 30-day
extension of time to 16 August 2021 (OAIC ref: RQ21/01789). The Agency obtained your
agreement for an additional extension of time under s 15AA of the FOI Act for 30 days till 15
September 2021(OAIC ref: RQ21/02198).
Contact with you
On 24 September 2021, I wrote to you to seek your view on the Agency’s application. On 27
and 28 September 2021, you responded to my inquiries and provided comments which I
have taken into consideration, including that:
There has been a lengthy delay in responding to what is a simple request.
I will not object to one more extension of time, but if there is a further delay, then I would
appreciate the assistance of the Office of the Australian Information Commissioner.
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.
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
Although the Agency has requested an extension of time to 14 November 2021, I have
decided to grant the Agency an extension of to
29 October 2021 to process your request. In
coming to this decision, I have considered the following factors:
• On 17 June 2021, the Agency received your FOI request.
• On 8 September 2021, the Agency requested an additional extension of time from
you, however it appears no response has been received.
• The Agency considers your request to be voluminous as it consists of a large number
of hard copy documents.
• Due to the COVID lockdowns in both the Sydney and Melbourne offices, the Agency
has faced logistical issues in accessing these documents due to current remote
working arrangements.
• The Agency requires additional time to review the hardcopy documents and finalise
the decision.
• When consulted by the OAIC, you agreed to the extension of time.
This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken
never to have applied if the Agency makes a decision on your request by
29 October 2021.
Such an extension can only be granted once and cannot be extended by a variation.
If you do not receive a decision by
29 October 2021, you may wish to seek Information
Commissioner review of the Agency’s deemed refusal of your reques
t here. Further
information
on applying for IC review is available on the OA
IC website.
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 me on (02) 9284 9847 or via email
xxxxxx.xxxxxx@xxxx.xxx.xx. Please quote OAIC reference number at the top of this page in all
correspondence.
Yours sincerely
2
Jasmin Clarke Assistant Review and Investigation Advisor
FOI Regulatory Group
28 September 2021
3
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/ .
4