Request has been reassigned in Right to Know to the Department of Health at the request of DFAT FOI, as the request is now with Health.

Cheers,

Ben

It is to no purpose to ask the Department why they have not fulfilled their responsibilities "in a timely fashion". Why not? First, because the department is not obliged to answer the question. Second, because the Freedom of Information Act does not consider the possibility of a department being asked such a question. Third, because under Act, it is deemed that the applicant did receive a response.

Only the Act is important. In the acknowledgment letter with the reference 223-1314, the department told the applicant that "the due date for a decision is 30 April 2014". The department correctly calculated the due date. It might make a frustration and irritation for the applicant that the department does not respond by the due date. But is not a terrible sin. It is not negligence. It is not deriliction in duty. It is not more and not less than a tick of the clock that brings another section of the Act into force. It is the same with many other aspects of the Act. An action, or a failure to take action, makes the precipitation of another part of the Act. In this case, the event of not notifying the applicant of a decision by the due date initiates section 15AC(3).

Section 15AC(3) says that "Subject to this section: (a) the principal officer of the agency or the Minister is taken to have made a decision personally refusing to give access to the document on the last day of the initial decision period; and (b) notice of the decision is taken to have been given under section 26 to the applicant on the same day." So for the purposes of the law, it is now not (!) the case that the department did not make a decision and did not notify the applicant. Instead, it is as if the applicant received a letter personally from Professor Jane Halton, Secretary of the Department of Health, refusing the applicant's request. So naturally it is absurd to ask the department why it did not fulfil its responsibilities. The Act guarantees that for the purposes of the law, the department did fulfil its responsibilities.

What next? The decision regarding the request of the applicant is known as a "deemed refusal" decision (see http://www.oaic.gov.au/freedom-of-inform...). The applicant can now apply for review by the Information Commissioner of the refusal. Internal review does not apply because the decision of the head of an agency is not internally reviewable.

But here is the unfortunate information ... a person can be very sure that an IC review will be very slow. I think that it is better to telephone the department, or email, and ask for some clarification. I do not think this is equal to a question of "why did you not fulfill your responsibilities". A person could ask a different question and enter a reasonable discussion about how to allow the Department enough time to process the request.

I've raised a request to change the wording, as I don't think we should be saying "promptly" as there is no obligation for them to be. Just to have it done within the timeframe (which in this case has been breached).

To summarise Locutus Sum, the fact they have not replied means they have refused you access. You can try an Internal Review before going to the OAIC. You could also try calling them on the number in the PDF (02 6289 1666) and asking them nicely.

Sorry, scratch that idea about Internal Review. Looks like I'm no match for Locutus Sum ;)

The annotation from Mr Fairless made me worry. I started to think that I must write out 100 time "I must be careful to check the law" but in fact, I did give correct advice.

Applications for internal review are covered by section 54 of the Freedom of Information Act. The second subsection of section 54 says "The applicant in relation to the request may apply under this Part for the review ... of the access refusal decision", but the first subsection says "This section applies if an access refusal decision is made in relation to a request to an agency for access to a document, other than a decision made personally by the principal officer of the agency or the responsible Minister", so it is correct to say that a "deemed refusal" is not internally reviewable because it was (deemed to have been made) by the principal officer.

You can see an example in the reply from Australian Curriculum and Reporting Authority to Red (https://www.righttoknow.org.au/request/n...) where the agency says that they cannot review the decision internally.

To make another suggestion, you can ask the department to consider to apply to the Information Commissioner for a "deemed refusal extension" under section 15AC (have a look at the annotation from Mr Sadlier in https://www.righttoknow.org.au/request/2...). It looks as if 15AC is to do the department a big favour. Maybe it was conceived that way but I think it is actually to your advantage. If the department gets a deemed refusal extension, then maybe they will actually give you what you want and quickly. If they do not get an extension, then you must apply for IC review and possible wait for the end of time ...

Thank you both for taking an interest in this FOI request, I must admit I am not well acquainted with the FOI act, or how it works and I did jump to conclusions about how the FOI process works but thank you both for filling in the gaps.

It is genuinely appreciated and it is great that there are well informed people such as yourselves that volunteer your time to do this so again thank you.

I have opened up a dialogue via email with the department of health and they have assured me that they are looking into the matter and I will receive a response shortly. If they do so outside of this website then I will make sure that I update this forum to keep everyone up to date.

Thank you all

Kind Regards,

Michael

Glad we could be of help Michael. It's rather easy when you get the hang of it, and don't ever be afraid to ask a question about FOI here :)

You can actually communicate with the Health Department directly via Right to Know if you wish, your responses are sent to the Department as emails and they can respond exactly the same way.

They can also reply directly to the email address for this request (get them to contact us - https://www.righttoknow.org.au/help/cont... - if they don't have it or there are technical issues). This would allow the documents to be released here for everyone!