Decision to GRANT under s 15AC RQ24 03770.pdf

Decision to grant an extension of time under
s 15AC of the Freedom of Information Act 1982
Agency
Office of the Special Investigator
Applicant
Mr James Smith
Date of decision
11 September 2024
OAIC reference number
RQ24/03770
Agency reference number
FOI24/13
Decision
1.  On 10 September 2024, the Office of the Special Investigator (the Agency) applied to the
Information Commissioner under s 15AC(4) of the Freedom of Information Act 1982
(Cth) (FOI Act) for an extension of 13 days to 19 September 2024 to process Mr James
Smith’s (the Applicant) request of 8 July 2024 (the FOI request). This application was
made on the basis that the processing period is insufficient to adequately deal with the
FOI request.
2.  As a delegate of the Information Commissioner, I am authorised to make decisions on
applications for further time under s 15AC(5) of the FOI Act.
3.  Under s 15AC(5) I have decided to grant the Agency further time to deal with the
request to 19 September 2024. My reasons are outlined below.
Background
4.  The background to this application is summarised in Attachment A.
5.  A copy of the Agency’s reasons for seeking an extension are included at Attachment B.
Reasons for decision
6.  Subsection 15AC(5) of the FOI Act provides that I may allow further time that I consider
appropriate for the agency or Minister to deal with the request.
7.  In making my decision under s 15AC(5), I have considered the information provided by
the Agency and the FOI Guidelines issued by the Information Commissioner under s 93A
of the FOI Act, in particular paragraphs [3.150] – [3.157].
8.  On the information before the OAIC, I am satisfied that the application for further time
until 19 September 2024 is justified, for the following reasons:
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•  Based on the Agency’s submissions, I am satisfied that the request involves some
challenges for the Agency, based on the absence of key decision-making personnel
and the requirement to finalise consultation with other Commonwealth agencies.
•  The further time sought by the Agency does not appear to be excessive in the
circumstances.
•  Granting this further time will also reinstate the Applicant’s right to seek an
internal review of the Agency’s decision, and to extend the timeframe for the
Applicant to apply for an IC review of the Agency’s decision.

9.  In granting this further time, I have also considered:
•  The work already undertaken by the Agency to finalise the request.
•  Steps taken by the Agency to first request a s 15AA agreement from the Applicant.
•  Steps taken by the Agency to utilise relevant extension of time provisions available
under the FOI Act to allow for third party consultation.

10.  The new due date for the Agency’s decision on the FOI request is now 19 September
2024.
11.  This further time granted 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 the request by 19
September 2024. Such an extension can only be granted once and cannot be extended
by a variation.
12.  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 further time granted under s 15AC of the FOI Act means that charges
cannot be reimposed and any deposit the applicant has paid should be refunded.
13.  If the Agency does not provide the Applicant a decision by 19 September 2024, or the
Applicant disagrees with a decision from the Agency, it will be open to the Applicant to
seek Information Commissioner review (IC review). Further information on applying for
IC review is available on the OAIC website. Any application for IC review would need to
be made within 60 days of the agency’s decision or deemed decision.
14.  For further information, the OAIC website provides a resource containing information on
applying for an extensions of time to process freedom of information requests.
15.  This extension of time matter is now closed. Your review rights are set out below.
16.  If you would like to discuss this matter, please contact our office by email at
xxxxx@xxxx.xxx.xx, quoting reference number RQ24/03770.

Regards

A De Ieso

Andriana De Ieso
Review Adviser
Office of the Australian Information Commissioner
11 September 2024
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Attachment A

Background to processing period

Background
Processing period
Due date

FOI request made on  30 days
7 August 2024
8 July 2024

Third party
Extended by 30 days, under s 15(6)
6 September 2024
consultation
undertaken under
ss 26A, 27 or 27A

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Attachment B

The Agency’s reasons for requesting an extension of time, as included in the extension of
time request form.

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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
at 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 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/your-freedom-of-information-rights/freedom-of-
information-complaints/make-an-foi-complaint .
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint to the
Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman
can investigate complaints about the administrative actions of Australian Government agencies to see if
you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC
reconsider or change its action or decision or take any other action that the Ombudsman considers is
appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the
Commonwealth Ombudsman’s website at http://www.ombudsman.gov.au .

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