From https://www.righttoknow.org.au/request/p... (about #qanda tweets)

"The ABC is specifically excluded from the operation of the FOI Act in relation to its program material by virtue of s7(2) and Part II, Schedule 2 of the FOI Act. ‘Program material’ for the purposes of that Part has been interpreted to mean:
“the program and all versions of the whole or any part of the program, any transmission broadcast or publication of the program, and includes a document of any content or form embodied in the program and any document acquired or created for the purpose of creating the program, whether or not incorporated into the completed program...[and including] a document created after a program is broadcast [such as] transcripts of programs ... and documents produced by the ABC or incorporated in its records directly concerning the substantive content of the broadcast program”"

So rightly or wrongly, they'll probably knock this request back and it would take a Tribunal to overrule that interpretation of "program material" :/

I apologize (a little) to Fred Domrange to use his request as an example. I use it for this because he makes a small error in the thoughts that he has and it is an error that is made also by other Right to Know users. Also, in my opinion, it brings to the attention some interesting things about the structure of the FOI Act.

In the email 10 March 2015 Mr Domange says "Just a friendly reminder that a response to this request is now overdue" (https://www.righttoknow.org.au/request/h...). Mr Domrange has made a mistake and I can explain the mistake in a moment.

Other persons who make a similar mistake to say that the a response to their request is overdue are also the following:
Henare Degan: Irregular maritime arrivals (https://www.righttoknow.org.au/request/i...)

Paul Farrell: Register of client services officers accredited in use of force (https://www.righttoknow.org.au/request/r...)
Ben Fairless: SEDNode User Guide (https://www.righttoknow.org.au/request/s...).
Phillip Sweeney: Australia's Worst White Collar Crime (https://www.righttoknow.org.au/request/a...).

Each time in the examples, a person says that a response to a request is overdue. What does the word "overdue" suggest? In my opinion it is to say that there was originally a day when the department or agency was required to make a decision and they did not make a decision before that date. So it is "natural" to think that after this date, the decision is overdue. It is natural but it is not the law. The Freedom of Information Act does not ever call a decision overdue because there is never existing an overdue decision. This is because of the operation of section 15AC of the Act (http://www.austlii.edu.au/au/legis/cth/c...). This section looks at whether a notice of a decision has been received by the applicant, so it is not even relevant if the department actually made a decision. The section says that if the applicant has not received a notice of a decision on a request, then the request is deemed to have been refused and also it is deemed that the notice of the decision was given to the applicant on exactly the same day.

So there is never an overdue FOI decision! If a department forgets to make a decision then section 15AC will make the decision at exactly the time the decision is due. The compensation that an applicant has for a "deemed refusal" decision, instead of a decision made by a real person, is to make an application for review. There is no other method under the Act.

I do not write this to say "Do not write to the agency with a reminder." Very often the FOI officer will apologize and will eventually make a decision (it is the case with the application from Mr Domrange) but it is all beyond what is covered by the FOI Act.

I think the use of "overdue" is people allowing some pragmatism into what is in practice a hugely bureaucratic, long, drawn-out FOI process.

If one assumes on the final day that it is refused, then yes you can ask for a review, but that then officially drags the request out by even more time.

On some of the cases you cited, documents were provided. Would those documents have been released eventually? Possibly. But it would have taken a whole lot longer.

Mine was refused, as expected. Do you think there would have been any use demanding a review straight away before the decision was published?
Surely it's better to get a decision than just assume it's refused straight away.

There's also the matter of the reviews downstream. With no OAIC anymore (no fully functioning one), the only option is an expensive tribunal hearing against the state with its vastly superior resources and legal understanding.

Let me know what you think. Open to learn!

I agree with you completely, Mr Domange.

There can be many reasons for an agency not to provide an applicant with a decision before expiration of the period stated in s 15(5)(b) (https://www.austlii.edu.au/au/legis/cth/...).

The worst reason (I have no proof of such a thing) is for an agency deliberately to allow the 30 days time to expire without making a decision. In this case, a polite reminder will be useless but it is not be possible to know that an agency has taken this immoral path and also a reminder cannot cause harm.

I think it is more likely that a decision is delayed because of administrative overload. For example, in Sweeney and Australian Information Commissioner and Australian Prudential Regulation Authority (Joined Party) [2014] AATA 539 (http://www.austlii.edu.au/au/cases/cth/A...) the agency says that there is only one person dedicated for FOI requests. If the agency has many requests there will be a problem to make decisions in 30 days. I think in this case, maybe it is better first to send an email to ask, "Do you need an extension of time?" When a person makes this action, they invoke some formal parts of the Act that have beneficial consequences. It is also like a reminder and also it can be polite but it also sets a new time for the decision. In my opinion this can be useful.

Now your question, "Do you think there would have been any use demanding a review straight away?". In the first paragraph I said that to give a polite reminder cannot cause harm. This is true but it is a mistake for an applicant to continue with more friendly reminders because this can cause the applicant harm. How? Time can "run out" (http://www.austlii.edu.au/au/legis/cth/c...) for the applicant. If the applicant makes application on zero day, and the agency does not make a decision or request an extension before day 30, then a decision is made automatically because of the operation of section 15AC of the Act (http://www.austlii.edu.au/au/legis/cth/c...). So now there is a clock for when the applicant can ask for an internal review or can ask for Information Commissioner review. If the applicant is polite for too much time, then time will run out to make application for review! In my opinion an applicant must follow the advice from President Roosevelt of the United States (www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s15ac.html). "Walk softly [be polite], and carry a big stick."

Another comment. In Australia now, an agency that is behaving badly can do this for a long time. The agency can deliberately let an applicant have a "deemed refusal" decision from section 15AC. The only remedy for the applicant is to ask for internal review or IC review. But also the Information Commissioner has now very few staff and resources so it can take a very long time for the IC review. Also, unfortunately, your statement "the only option is an expensive tribunal hearing against the state" is incorrect (http://www.austlii.edu.au/au/legis/cth/c...). A person cannot ask for review from the Administrative Appeals Tribunal before either an IC review decision is made or the Commissioner decides not to decide! So FOI is in a very much poor condition and applicants are in the pig house.

And now I have the last comment. I chose this application (yours) for my comments very much because it was a polite reminder to the ABC. Also, each example that I made in my earlier annotation was also with a polite reminder from the applicant. But a search of Right to Know also shows some very impolite and insulting emails from applicants who write "I deserve ...", and "You should have ...". To these people I think it is correct to say, "It is you who are wrong. The agency has made a decision. It is a deemed decision under section 15AC. The decision was 'No you cannot have the documents you wanted'. If you do not like this deemed decision, then you have legal remedies ... but do not have a public tantrum".

Maybe I have written too much but when there is an invitation, it is difficult to refuse.

Bedste ønsker!

Now I see I have been too lazy with the check of my annotation. The link for the diplomacy of President T. Roosevelt is NOT section 15AC of the Act but already you will know this! The link is https://en.wikipedia.org/wiki/Big_Stick_...