IP Australia recognises that the recent COVID-19 outbreak may have an adverse impact on the ability of parties and their representatives to meet timeframes under the Freedom of Information Act 1982 (Cth) (the FOI Act). In particular, this may concern affected third parties involved in mandatory consultation processes under sections 27 and 27A of the FOI Act in relation to their business and personal information.
The COVID-19 outbreak may also impact on IP Australia’s ability to meet its notice of decision timeframes under subsections 15(5) and 15(6) of the FOI Act.
Where an agency processing an FOI application cannot complete a decision within time due to the effects of the COVID-19 outbreak, the agency may seek the FOI applicant’s agreement to an extension of time under section 15AA of the FOI Act.
FOI applicants should note that the time period for issuing a final notice of decision cannot be extended under this provision beyond a further 30 days (amounting to a maximum total of 90 days where there is consultation on business and personal information with affected third parties). However, IP Australia will need to obtain the written agreement of FOI applicants and the Information Commissioner (IC) must be notified as soon as possible after agreement has been reached under section 15AA. Where FOI application processing workloads suddenly increase due to the effects of COVID-19, IP Australia will proactively seek the agreement of the FOI applicant to a section 15AA extension in the application acknowledgement letter.
Alternatively, an agency can seek an extension of time directly with the IC under section 15AB of the FOI Act on the basis that an FOI application is complex or voluminous. A relevant factor in the IC’s determination of this type of extension application is the absence of key staff (for instance, due to public holidays or agency shutdown periods) where those staff members have special skills or knowledge required to process the request within the normal statutory timeframe. If granted, the extension period may be 30 days, or a shorter or longer period where required.
If the time for making a decision on a request for access to a document has expired and an FOI applicant has not been given a notice of decision by the agency by the due date, a refusal decision is deemed to have been made under section 15AC of the FOI Act. In this situation, IP Australia could apply to the IC for further time to deal with a request under subsection 15AC(4) of the FOI Act. As in the case of a section 15AB application, the extension period is determined by the IC.
General guidance is available from the OAIC website. However, FOI applicants and affected third parties should seek the advice of a qualified legal professional if they are uncertain about the extension of time provisions under the FOI Act.
As you would be aware, the Department of Health currently has an active alert monitoring the outbreak of coronavirus (COVID-19). The Australian Government, and in turn IP Australia is taking this issue seriously, activating necessary precautions in line with our Business Continuity Plan (BCP).
Our BCP (consistent with Australian Government requirements) ensures we monitor and take appropriate actions to safeguard our staff and the services we provide customers.
For up to date information about COVID-19, please see the Department of Health’s website.