Dear Office of the Australian Information Commissioner,
I ask that this request to be dealt with administratively and not under FOI.
There are numerous ways agencies can delay processing of foi requests. These include:
- request consultation
- s 15AA (by consent with applicant)
- s 15AB (by approval from OAIC)
- third party consultation
- staged release
There is also s 15AC(4) and s 15AC(5) which allows the OAIC to effectively make a late decision already issued, which may not have been given until years later, into a decision made 'within time'
It is a retrospective whitewashing of an often long overdue decision, to improve the figures reported in FOI statistics by agencies and no more.
It differs from s 15AA and s 15AC approvals, in that it is applied for after a foi decision is eventually made, whereas all other extensions of time are applied for before a foi decision is made.
Can the OAIC outline the purpose of s 15AC(4) and s 15AC(5), and what benefit the OAIC asserts an extension of time s 15AC(4) and s 15AC(5) gives to applicants, given these s 15AC(4) and s 15AC(5) extension of time requests are being made not on deemed decisions, but on foi decisions that substitute this deeming.
And as the OAIC is approving s 15AB requests made after a decision is deemed, is the overlap between these s 15AB extensions of time and s 15AC(4) and s 15AC(5) requests appropriate.
Has the OAIC ever created a document that considers these matters?
Thank you for your enquiry relating to the application of extension of time provisions under the Freedom of Information Act 1982 (the FOI Act).
I have addressed each of your questions below:
1. Can the OAIC outline the purpose of s 15AC(4) and s 15AC(5), and what benefit the OAIC asserts an extension of time s 15AC(4) and s 15AC(5) gives to applicants, given these s 15AC(4) and s 15AC(5) extension of time requests are being made not on deemed decisions, but on foi decisions that substitute this deeming?
The purpose of s 15AC(4) and s 15AC(5) of the FOI Act is to allow the decision maker further time to deal with the FOI request.
In some instances, it may be quicker and more efficient for the matter to be decided by the agency or minister rather by Information Commissioner (IC) review.
This approach is consistent with the objects of the FOI Act.
In considering what further time may be appropriate, the Information Commissioner will consider each application on a case by case basis. The Information Commissioner may take into account:
• the details in the agency’s application, which should address the scope and complexity of the request
• the reasons for delay in making an initial decision
• the extension sought
• the estimated total processing time
• whether discussions with the applicant about the delay and extension application have occurred
• the total elapsed processing time, and
• the desirability of the decision being decided by the agency or minister rather than by IC review.
In allowing further time, the Information Commissioner can also impose conditions which may require the decision maker to:
• notify the applicant of the further time allowed
• provide regular progress reports to the Information Commissioner and the applicant
• provide a copy of the notice of decision when made to the Information Commissioner.
Such conditions allow the Information Commissioner to monitor these extension of time requests. In addition, only one request may be made under s 15AC(4) and (5).
2. And as the OAIC is approving s 15AB requests made after a decision is deemed, is the overlap between these s 15AB extensions of time and s 15AC(4) and
s 15AC(5) requests appropriate.
Section 15AB(1) of the FOI Act allows an agency to make a request for an extension of time if the agency considers that the period is insufficient because the request is complex or voluminous.
This request can only be made before the statutory processing period has ended, unlike requests under s 15AC(4).
In addition, there are no conditions attached if an extension of time is granted.
The Information Commissioner must inform the applicant and the agency as soon as practicable if the extension has been granted.
When extension of time requests under s 15AB(1) are made towards the end of the statutory processing period, it is not always practicable for the Information Commissioner to decide the matter before that period ends.
Further consultation with the parties may be required and submissions may need to be considered.
Each application is decided on a case by case basis, depending on the particular facts and circumstances.
3. Has the OAIC ever created a document that considers these matters?
The OAIC has issued the following guidance on extension of time applications:
• Part 3 of the FOI Guidelines - Information Commissioner's power to grant an extension of time following a deemed decision
• Guidance for applicants - https://www.oaic.gov.au/freedom-of-infor...
• Guidance for agencies - https://www.oaic.gov.au/freedom-of-infor...
I trust this information answers your enquiry.
FOI Regulatory Branch
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
[email address] | 1300 363 992
Dear OAIC - FOI DR,
Unfortunately as you did not address the context of my questions which was on the OAIC retrospectively approving substituting decisions made years after deemed response and the appropriateness of that, you did not.