How long should it take to deal with an access application?
An agency is required to deal with an access application as soon as is practicable; and in any event, within:
- 45 days after the access application is received; or
- such other period as is agreed between the agency and the access applicant; or
- such other period as is allowed by the Information Commissioner (section 13).
There is nothing to prevent the agency and the access applicant from negotiating to change the period of time in which an access application may be dealt with. To that end, the Information Commissioner strongly encourages parties to act reasonably and in good faith so that intervention by the Information Commissioner is not required.
If an access applicant seeks to reduce the time for an agency to deal with an access application, or the agency indicates that it may take longer than 45 days to deal with the access application, the applicant should consider limiting the scope of the application to allow the agency to deal with the application sooner.
For example, the applicant may agree to change the terms of the access application. This may include reducing the number of documents requested, specifying a category of priority documents and/or the exclusion of personal or business information about third parties contained within documents, which removes the potential need to consult those third parties.
If an agency seeks to extend the time to deal with an access application, the agency should give the applicant sufficient information to demonstrate that the agency is making every reasonable effort to comply with the prescribed time period, but certain circumstances will prevent it from meeting that period. It is also open to the agency and access applicant to negotiate other conditions for agreement to extend the period, including a waiver of part or all of the charges that may otherwise be imposed by the agency for dealing with the application (see page 20 of the FOI Coordinators Manual).
If, after taking reasonable steps to negotiate either a reduced period or an extended period for an application to be dealt with, agreement is not reached, a party may seek approval from the Information Commissioner to reduce or extend the time for dealing with an access application (see section 13(4) and 13(5)). However, the Commissioner will not usually consider such an application unless it is shown that, in the first instance, the relevant party has made genuine efforts with the other party to reach an agreement on an acceptable date for a decision on access to be made.
After the agency provides its decision on access to the documents requested in the access application, an access applicant or a third party may exercise reviews rights. Completion of the review process will necessarily extend the time it takes for an access application to be finalised.
What about delays?
If an agency does not give you a decision within the timeframes allowed under the FOI Act, you may be able to seek review of a ‘deemed decision’.
Tip: A third party and the agency cannot extend the time for dealing with an application or internal review without the agreement of the applicant.
What if the agency delays making a decision?
Show moreAn agency is required to deal with a valid access application within the timeframes outlined in the FOI Act, including providing a notice of decision within those timeframes.
Initial decision
An agency should give an access applicant written notice of its decision in respect of a valid access application as soon as is practicable and, in any event, within the ‘permitted period’, which is:
- 45 days after the access application is received; or
- such other period as is agreed between the agency and the access applicant; or
- such other period as is allowed by the Information Commissioner.
See section 13(3) of the FOI Act.
If an access applicant does not receive the agency’s decision within the ‘permitted period’, the agency is taken to have refused access to the requested documents and the applicant is taken to have received written notice of that refusal on the day the period ended – the agency is deemed to have refused access (section 13(2)).
An access applicant has the right to seek internal review of an agency’s deemed refusal decision, in the same manner had the agency given the applicant a notice of decision and advised the applicant of the right of internal review.
Internal review decision
An agency should give an access applicant (or a third party seeking internal review) written notice of its internal review decision within 15 days of receiving a valid internal review application or such longer period as is agreed between the agency and the access applicant (section 43(2)).
If a notice of decision is not provided within the time allowed under the FOI Act, the agency is taken to have confirmed the agency’s initial decision - the agency is deemed to have confirmed the decision under review.
An access applicant (or a third party seeking internal review) may seek external review by the Information Commissioner of an agency’s deemed decision to confirm the initial decision, in the same manner had the agency given a notice of decision and advised the applicant or third party of the right to seek external review by the Information Commissioner.
More information about review rights is available in our publication, <Review of agency decisions PDF or HTML).
Tip 1: An access applicant can agree to extend the period in which the agency is allowed to provide an initial notice of decision or an internal review decision. In some cases it may be in the applicant’s interests to agree to extend the time for dealing with an access application. When an agency is in the process of dealing with an application and has explained why there have been delays in dealing with an application, this office generally suggests that the access applicant consider giving the agency reasonable additional time to deal with the application.
Tip 2: A third party and the agency cannot extend the time for dealing with an access application or an internal review without the agreement of the access applicant.
Note: The above Information is intended as a general guide only and should not be viewed as legal advice. The Information Commissioner considers each complaint on its merits and according to the relevant circumstances.
How much does it cost?
Show moreNo application fee or charges apply if you are seeking personal information that is just about you (for example your medical records, details of employment, etc). However, if your application is just for your personal information, the agency is entitled to delete all other information from the requested documents (for example the names of doctors or co-workers).
If you wish to access information that is not just about yourself, you will need to pay a $30 application fee. In such a case, an agency may also impose other charges but only as set out in Schedule 1 to the Freedom of Information Regulations 1993. Those charges are:
- $30 per hour of staff time for dealing with an application. (Agencies cannot charge for locating the documents within the scope of your request.)
- $30 per hour for supervision by staff when access is given to inspect documents; or the time taken by staff to prepare a transcript from a tape or make photocopies.
- The actual cost incurred by the agency for preparing a copy of a tape, film or computerised information, or arranging delivery, packaging and postage of documents.
- 20 cents per photocopy.
There are no application fees or charges for internal or external reviews.
Estimate of charges
Show moreYou can ask the agency for an estimate of charges when lodging your access application. If the charges are likely to exceed $25, the agency must give you an estimate of charges and ask whether you want to proceed with the application (section 17).
You must notify the agency within 30 days of your intention to proceed. In some instances, the agency may require an advance deposit. If you are financially disadvantaged, advise the agency as a 25% reduction of charges may apply.
If you do not respond to an agency’s estimate of charges or its requirement to pay a deposit within 30 days, the agency is entitled to conclude that you have withdrawn your access application (section 19).
You can apply for review of an agency’s decision to impose a charge or require a deposit.
Calculating Charges – information for agencies
Show moreApplicants are entitled to have access to documents at the lowest reasonable cost (section 4).
The FOI Act and FOI Regulations outline the charges an agency can impose for dealing with an access application (section 16, regulations 3 and 5 and Schedule 1 to the Regulations).
No fees or charges apply for applications that are limited to personal information about the applicant only.
The Information Commissioner has found that charges may be imposed for:
- consulting with third parties, if necessary;
- examining documents, exercising judgment and making decisions on access;
- deleting exempt matter where appropriate;
- preparing a notice of decision; and
- providing access in the manner required.
The Information Commissioner considers that an agency is not entitled to impose a charge for searching for documents. Although section 16(1) of the FOI Act clearly contemplates that a charge for conducting a routine search may be required to be paid by an applicant, no charge for searching for documents is presently prescribed by the FOI Regulations.
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