Our reference: RQ21/02069
Agency reference: LEX540
Ms Vanessa Teague
Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear Ms Teague
On 3 August 2021, the Australian Electoral Commission (the AEC) advised this office that it
had not made a decision on your FOI request of 23 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 AEC 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 AEC has
applied for further time to finalise your request.
Contact with you
On 5 August 2021, I wrote to you to seek your view on the AEC’s application. You responded
to my inquiries and provided comments that I have taken into consideration.
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 AEC further time to
17 August 2021 to process your request. In
coming to this decision, I have considered the following factors:
• On 23 June 2021, the AEC received your FOI request.
• The AEC was due to provide a decision on your FOI request on 23 July 2021.
• The AEC has advised that due to an administrative error, your request was
discovered in the AEC’s spam folder which had consequently blocked ‘righttoknow’
emails. The AEC has advised that the email was not forwarded to the legal team for
processing until the request was brought to the AEC’s attention on 26 July 2021.
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
• The AEC has further advised that steps have been taken to ensure the spam filter no
longer blocks emails from ‘righttoknow’ and is exploring avenues to enable requests
to be automatically directed to the legal team to prevent this error occurring again.
• The AEC has advised that additional time is required to finalise conducting searches,
review and assess documents, conduct internal and external consultations and
finalise the decision.
• When consulted by the OAIC, you agreed to this 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 AEC makes a decision on your request by 17 August 2021.
Such an extension can only be granted once and cannot be extended by a variation.
If you do not receive a decision by 17 August 2021, you may wish to seek Information
Commissioner review of the AEC’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 email in
all correspondence.
Yours sincerely
Jasmin Clarke Assistant Review and Investigation Advisor
Freedom of Information
9 August 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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