The Freedom of Information Act 1982 (FOI Act) requires agencies and ministers to comply with statutory timeframes for processing FOI requests. In some limited circumstances, the timeframe may be extended, for example, with the agreement of the applicant or with the approval of the Information Commissioner.
This agency resource gives an overview of the extension of time (EOT) provisions in the FOI Act and explains how to apply to the Office of the Australian Information Commissioner (OAIC) for an extension. It also outlines best practice for EOTs, and common mistakes that may result in an extension being declined. You should refer to the FOI Guidelines for full details: Part 3 — Processing and deciding on requests for access.
In this resource a reference to an agency includes a reference to a minister.
Extension of time provisions under the FOI Act
Figure 1 provides a broad overview of the extension of time provisions in the FOI Act. Each extension type is explained further below.
| Agency-managed timeframes | Agency must tell IC | IC approved extensions to timeframe | ||
|---|---|---|---|---|
Initial period
| Extension (to consult third party)
| Extension (with applicant's agreement)
| Extension (complex or voluminous request)
| Extension (following a deemed refusal)
|
Generally the EOT provisions apply sequentially with the extensions under ss 15AC, 54D and 51DA only applying after the initial processing period has finished.
Extension to allow consultation with a third party (s 15(6))
A decision maker in an agency may extend the processing period by 30 days if they need to consult an affected third party. The decision maker must determine in writing that a consultation mechanism under s 15(8), 26A, 26AA, 27 or 27A makes it appropriate to extend the processing period. Agencies do not need OAIC approval for this type of extension, but do need to inform the applicant.
Extension with the applicant's agreement (s 15AA)
An agency may extend the processing period by up to 30 days if the applicant agrees in writing. The agency can also ask applicants for further extensions under s 15AA as long as the combined length of all agreed extensions does not exceed 30 days. The agency must give written notice of an extension to the OAIC as soon as practicable after the agreement is made. If the agency does not tell the OAIC, the extension is invalid.
A s 15AA agreement cannot be made once an FOI request has become a deemed refusal under s 15AC.
Extension for complex or voluminous requests (s 15AB)
An agency may apply to the OAIC for an extension if the FOI request is complex or voluminous. The agency must justify why an extension is necessary. The OAIC may extend the processing period by 30 days or another longer or shorter period, as appropriate. An agency may apply to vary the extension if an earlier extension granted by the OAIC is insufficient, however the agency must explain what has changed since their initial application for extension and provide new reasoning for why a variation on the extension is justified.
A s 15AB extension cannot be requested following a deemed refusal under s 15AC. However, if the extension is requested before this occurs, then it is valid even if the OAIC approves it after this date.
Extension following a deemed refusal decision (ss 15AC, 54D, 51DA)
An agency may apply to the OAIC for further time after a decision has become deemed (either under s 15AC or under s 54D after an application for internal review). The application may only be made after the processing period has finished. An extension in these circumstances can only be granted once and, once granted, cannot be extended further.
The agency must justify why an extension is appropriate. The OAIC may extend the processing period by an amount of time suitable to the circumstances and may impose conditions on the extension.
Similar provisions apply to a deemed refusal to amend or annotate personal information under s 51DA.
Imposing an FOI access charge
An agency may impose a charge if a decision is made to grant access during an extension period agreed to by the applicant, granted by the OAIC for a complex or voluminous request, or arranged by the agency for third party consultation. An FOI charge cannot be imposed after a deemed refusal decision, even if an extension is granted by the OAIC under ss 15AC, 54D or 51DA.
Best practice when applying for an extension of time
- Give early consideration to the need for an extension.
This creates options. You have time to consult the applicant on reducing the scope of their request, to negotiate an extension with the applicant, or to apply to the OAIC for an extension. - Ensure that the EOT application is right the first time.
Make the best possible EOT application the first time. The OAIC may decline an EOT application that is missing supporting material or does not sufficiently make the case for the granting of the extension. - Keep the applicant in the loop.
It is good practice to keep an FOI applicant informed of developments with their application, including requests to the OAIC for an extension. You may choose to send the applicant a copy of your EOT application. This streamlines the process and can speed up OAIC response time, especially if the OAIC needs to consult the applicant about the extension. The OAIC will regard the applicant's agreement to the extension favourably in making its decision. - Explain how you will use the extra time.
This is particularly important for a request for a significant extension. You should consider providing a breakdown of what actions still need to occur and the dates they will be completed. - Assess options for a staged release of documents.
Releasing documents in stages means that a request is not held up by a few complex documents. An applicant may be more inclined to agree to an extension where parts of their request have already been fulfilled. - Have an experienced FOI officer oversee EOT applications.Having one central point of contact within the agency to check EOT applications before they are sent to OAIC helps to ensure that applications consistently meet the requisite standards and are not needlessly declined.
Common mistakes when applying to the OAIC for an extension of time
An error or gap in your EOT application may mean that your request for an extension is needlessly declined. Here are some common mistakes and how to avoid them.
| Common mistakes | Result |
|---|---|
Agency does not provide adequate explanatory information to support request for an extension | EOT application may be declined. Agencies must make a case for why the Information Commissioner should use the discretion under the FOI Act to extend the timeframe. Be as specific as possible. General considerations must be clearly linked to the actual FOI request in question. Requests for longer extensions of time will require greater justification. See below for more information about what your EOT application should include. |
Agency fails to inform the OAIC of a s 15AA extension (extension with applicant approval) | The s 15AA extension is invalid. Later, if you apply to the OAIC for a further extension you may find that you are out of time without realising it. This can affect your ability to seek extensions or to impose a charge. Take care to inform the OAIC of any extension agreed upon with the applicant. The EOT smart form offers a fast and straightforward way of doing this. |
Agency fails to include the OAIC's reference number | This can cause confusion both for the agency FOI officer and OAIC staff. There is a risk the EOT application will be delayed due to confusion over which FOI request is being referred to. Agencies will not always have a reference number from the OAIC. However, where one has been allocated (for example, if the agency has previously notified the OAIC of a s 15AA extension or has previously applied for a 15AB extension for the request) an agency must include it in their application. If there is more than one request on hand from the applicant or the applicant's name changes during the process (for example, the applicant chooses to be represented), failure to include the reference number may lead to confusion. Not only does this slow the processing of the EOT request, it may result in the EOT being declined. |
EOT application is made under the wrong extension provision | EOT application declined. In the FOI Act there are extension provisions under ss 15AA, 15AB, 15AC, 54D and 51DA (these are explained above). Take care to make your application under the correct one as the requirements for each are different. For example, an extension under s 15AA only requires notifying the Information Commissioner, whereas an extension under s 15AB will require supporting evidence and explanation. Take care when using the EOT smart form. Ticking the wrong extension provision will mean that many of the fields you need to fill out change or disappear. |
Agency does not provide adequate explanatory information to support a request for a further extension under s 15AB | Request for a further EOT declined. Agencies must make the case for an extension every time. Provide new reasoning. Explain what has changed since the previous EOT application and why a further extension is necessary. It is inadequate to resubmit the reasoning supplied previously. |
What happens if you do not meet the statutory timeframe
Agencies should continue to process an FOI request even where the statutory timeframe has expired and an extension of time has been refused or not sought. The expiry of the timeframe gives the applicant the right to apply for review of a deemed decision — it does not remove the agency's obligation to process the request. The agency's obligation ceases only when the Information Commissioner commences a review of a deemed decision (that is, the date the OAIC notifies the parties that it is commencing a review, not the date an application for IC review is lodged). At that point, the Information Commissioner has assumed jurisdiction over the matter and the provisions of the FOI Act relating to IC review apply (including an agency's power to vary an access refusal decision under s 55G).
How to apply for an extension of time
You may apply for an EOT or notify the OAIC of an extension with the applicant's agreement by completing the EOT smartform.
Applying for an EOT using the smartform
The smart form can be used to apply for an extension or to notify the OAIC of a s 15AA EOT (an extension with the agreement of the applicant).
Take care when filling out this form to select the correct EOT provision as ticking the wrong provision will mean that many of the fields you need to fill out change or disappear.
When applying to the OAIC for an extension of time, make sure you explain your reasons for seeking an extension of time. Use of the smartform does not remove an agency's obligation to justify their request and provide supporting evidence and explanation. The form provides a text box for this and offers directions on what to include. At a minimum, agencies should explain:
- the reason for needing an extension (it is not sufficient to say that the request is voluminous — explain how many documents are covered by the request; the number of duplicates (if known); the nature of the documents (their size, format or classification may be relevant); any factors slowing their processing; whether the agency has consulted with the applicant to try to reduce the scope of the request; whether a schedule of documents has been developed; whether the schedule has enabled the agency to identify documents appropriate for earlier staged release and so on)
- work already undertaken in processing the request
- work required to finalise the request
- work undertaken on the request following any earlier extension granted
- any consultation with the applicant concerning length of time
- whether other agencies or parties have an interest in the request
- measures that would be taken to ensure a decision is made within the period of extension and to keep the applicant informed about progress.
The OAIC does not take decisions to extend timeframes lightly and agencies should use the text box to provide formal, structured and complete reasoning.
If the form does not give sufficient space, consider attaching further supporting information (the form allows this in the section following the text box).
How the OAIC will respond to your request or notification
A decision on your request will usually be provided within five working days. In certain circumstances the OAIC may need to consult with the FOI applicant or other affected parties. If this is the case, the extension may take longer to process.
Generally the OAIC will consult the applicant where the extension sought is for a period longer than 30 days or where the agency is seeking to vary (further extend) an earlier extension granted by the OAIC. During consultation, the OAIC will often send the applicant a copy of the EOT application, so please advise if it contains anything sensitive that should not be passed on.
The OAIC's processing of an EOT application may also take longer than five days if further information is required. It is important that agencies provide a complete application in the first instance. Incomplete EOT applications may result in an extension being denied.
The Information Commissioner may open an own motion investigation if there is a systemic issue in the type, nature or frequency of EOT requests from a particular agency.
Extensions and transfers
Where an agency has sought an EOT to process a request and later determines that all or part of the request should be transferred under s 16 of the Act, the extension of time continues to apply to that request. On negotiating to secure a transfer, the agency should inform the receiving agency of any applicable extension, provide details of any agreements and advise the OAIC that all or part of the request has been transferred. If the request is out of time, the transferring agency should leave it to the receiving agency to apply for an extension.
Once a request has been transferred, only the agency holding the request can seek an extension of time. If an agency agrees to accept the transfer of an FOI request that is out of time, they should approach the OAIC to negotiate an extension of time under s 15AC.
