Decision to decline an extension of time application under s 15AB
of the
Freedom of Information Act 1982
Agency
Office of the Special Investigator
FOI applicant
Mr James Smith
Date of Decision
1 November 2024
OAIC reference number
RQ24/04579
Agency reference number
FOI24/18
Decision
1.
I refer to the application made by Office of the Special Investigator (the Department)
under s 15AB(1) of the
Freedom of Information Act 1982 (Cth) (FOI Act) for an
extension of time to process Mr James Smith’s (the FOI applicant) request of 22
September 2024 (the FOI request).
2.
As a delegate of the Information Commissioner, I am authorised to make decisions on
extensions of time applications made under s 15AB(2) of the FOI Act.
3.
On the information before the Information Commissioner, I have decided to decline the
Department’s request to extend the processing period on the basis that the FOI request is
deemed refused on 22 October 2024 and the Department’s application made on 23
October 2024 (after the deemed refusal) is invalid under s 15AB(2). A decision on the
FOI applicant’s request therefore remains due by 22 October 2024. My reasons are
outlined below.
Background
4.
On 22 September 2024 , the FOI applicant made an FOI request to the Department. The
FOI decision was due to be provided to the FOI applicant on 22 October 2024.
5.
On 23 October 2024, the Department applied to the Information Commissioner for further
time to process the FOI applicant’s request under s 15AB(1) of the FOI Act, on the basis
that the processing period is insufficient to adequately deal with the FOI request, because
it is complex and/or voluminous. A copy of the Department’s reasons is included at
Attachment A.
1300 363 992
T +61 2 9284 9749
GPO Box 5218
www.oaic.gov.au
oaic.gov.au/enquiry
F +61 2 9284 9666
Sydney NSW 2001
ABN 85 249 230 937
Reasons for decision
6.
Subsection 15AB(2) of the FOI Act requires that I consider whether the application is
justified on the basis that the processing period referred to in s 15(5)(b) is insufficient for
dealing with the request, on the basis that the request is complex or voluminous.
7.
In declining to extend the processing period under s 15AB(2), I have considered the
following factors:
Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act, to which I must have regard, in particular [3.150] – [3.155]
whether an agreement to extend the processing period under s 15AA of the FOI Act
has first been attempted or obtained by the Department.
8.
On the information before the OAIC, the FOI request was deemed refused on 22 October
2024. For a s 15AB extension application to be valid, it must be submitted prior to a
deemed access refusal occurring. As the Department’s s 15AB application was made on
23 October 2024, after the deemed access refusal decision, the Department’s s 15AB
application is considered invalid.
9.
The FOI applicant may seek review by the Information Commissioner of [the
Department]’s deemed access refusal decision of 22 October 2024. Further information
on
applying for IC review is available on the OAIC
website. Any application for IC
review should be made within 60 days of the Department’s decision or deemed decision.
It also remains open to the Department to apply for an extension of time from the
Information Commissioner under s 15AC of the FOI Act, if considered appropriate.
10.
This extension of time matter is now closed. Your review rights are set out below.
11.
If you wish to discuss this matter, please contact us by email at
xxxxx@xxxx.xxx.xx quoting reference number RQ24/04579.
Yours sincerely
Assistant Director
Freedom of Information Branch
1 November 2024
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Attachment A
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
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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 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/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
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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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