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Extension of time under s 15AC

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Extension of time under s 15AC

Our reference: RQ21/03229 Agency reference: FOI 21/22/0051

Shirley

Sent by email: foi+request-7596-075b36e9@righttoknow.org.au

Dear Shirley

On 13 October 2021, the National Disability Insurance Agency (the NDIA) advised this office that it had not made a decision on your FOI request of 16 July 2021 within the statutory period provided by the Freedom of Information Act 1982 (Cth) (the FOI Act). Consequently, the FOI Act deems that the NDIA has refused your request.

However, s 15AC of the FOI Act allows the Information Commissioner to extend the processing time for an FOI request where the initial decision period has ended, and the agency or Minister has not provided the applicant with notice of a decision. The NDIA has applied for further time to finalise your request.

The NDIA advised that the statutory timeframe had been suspended under s 24AB of the FOI Act.

The Office of the Australian Information Commissioner has previously granted the NDIA an extension of time under s 15AB(2) of the FOI Act (OAIC reference: RQ21/02259). This extended the decision period to 15 September 2021.

Decision

As a delegate of the Information Commissioner, I am authorised to make decisions on applications for extensions of time under s 15AC(5) of the FOI Act.

I have decided to grant the NDIA further time to 15 October 2021 to process your request. In coming to this decision, I have considered the following factors:

  • On 16 July 2021, the NDIA received your FOI request.
  • The NDIA considers your request to be complex as it consists of highly sensitive information covering both current and historical documents. Searches have been identified as particularly complex as ICT infrastructure have changed over time and other Commonwealth agencies hold the archived material.

Extension of Time

• After the NDIA was granted an extension of time under s 15AB of the FOI Act until 15 September 2021 (OAIC reference: RQ21/02259), the NDIA finalised searches and consultations undertaken with multiple line areas. • During this time, the NDIA has advised that you revised the scope of your request. • Due to the COVID-19 lockdowns, the NDIA advise that further delays occurred due to the significant impact on staff and agency operations with major structural changes and multiple staff departures. As a result, this NDIA has been training new staff online to assist with significantly increased caseloads. • Additional time is required to finalise the decision.

This extension of time under s 15AC of the FOI Act means that the deemed refusal is taken never to have applied if the NDIA made a decision on your request by 15 October 2021.

Such an extension can only be granted once and cannot be extended by a variation.

If you did not receive a decision by 15 October 2021, you may wish to seek Information Commissioner review of the NDIA’s deemed refusal of your request here. Further information on applying for IC review is available on the OAIC website.

I note that the Freedom of Information (Charges) Regulations 2019 provide that 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 extension under s 15AC of the FOI Act does not mean that charges can be reimposed and any deposit you have paid should be refunded.

Contact

If you have any questions, please contact me on (02) 9284 9847 or via email jasmin.clarke@oaic.gov.au. Please quote OAIC reference number at the top of this page in all correspondence.

Yours sincerely

Jasmin Clarke Assistant Review and Investigation Advisor FOI regulatory Group

25 October 2021

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 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/reviews-and-complaints/make-an-foi- complaint/.