Our reference: RQ23/03193
Agency reference: FA23/02/01304
MBV MBV
Sent by email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
CC: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
Extension of time under s 15AC
Dear MBV,
On 1 June 2023, the Department of Home Affairs (Department)
advised this office that it had
not made a decision on your FOI request of 21 February 2023 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 previously obtained agreement under s 15AA of the FOI Act for a 30-day
extension of time from MBV to 13 May 2023 (OAIC reference: RQ23/01565).
Contact with you
On 2 June 2023, the OAIC wrote to you to seek your view on the Department’s application.
You responded to our 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 Department further time to
13 June 2023 to process your
request. My reasons and considerations follow:
• An extension of time to 11 June 2023, may be extended to 13 June 2023 by operation
of s 36(2) of the Acts Interpretation Act 1901 (Cth);
• There are 16 documents captured in the request within 63 folios;
1300 363 992
T +61 2 9942 4099
GPO Box 5288
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx
F +61 2 6123 5145
Sydney NSW 2001
ABN 85 249 230 937
• 11 external agencies are to be consulted in relation to the request; and
• I have considered that granting this extension of time is expected to provide you with
a substantive decision by the Department on your request by
13 June 2023, which
will be substantially sooner than a decision by Information Commissioner review (IC
review). Granting this extension is also expected to reinstate your right to seek an
internal review of a substantive decision by the Department and to extend the
timeframe for you to apply for IC review of a decision by the Department.
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 13 June 2023.
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 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.
If you do not receive a decision by 13 June 2023 or you disagree with the Department’s
decision, you may wish to seek IC revie
w here. Further information
on applying for IC review
is available on the OA
IC website.
Contact
If you have any questions about this letter, please contact me on 1300 363 992 or via email at
xxxxx@xxxx.xxx.xx. In all correspondence please include OAIC reference: RQ23/03193.
Yours sincerely
Thomas Hanaee
Assistant Review Adviser
FOI Regulatory Group
8 June 2023
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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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