The current unprecedented events in managing and responding to the COVID-19 outbreak in South Australia (SA) has required all agencies to review and consider their business continuity arrangements.
An agency’s ability to meet the timeframes prescribed under the Freedom of Information Act 1991 (FOI Act) for making FOI determinations may in some instances be difficult. Each agency’s arrangements will vary and need to be informed by the particular operating circumstances of that agency.
There is no mechanism in the FOI Act to suspend or preclude applications from continuing to be made, nor is there provision to override statutory timeframes and arrangements in circumstances such as those we are currently experiencing.
While agencies should continue to strive to meet statutory timeframes, it is recognised that this may not be possible at times during this period and it is important that agencies keep applicants informed.
Agencies need to take proactive steps to respond to this dynamic environment. As a minimum the following should be considered in relation to application management and advice:
General advice to applicants
- Update advice on FOI pages to provide information on contact details and arrangements in place for responding to applications through this period.
- Assess existing applications and identify where extensions of time may be required.
This may include where an agency is due to make a decision on an access application within the coming weeks, and is not able to issue the decision within the statutory timeframe due to delays caused by officers working out of the office.
If section14A extension provisions cannot be satisfied, contact will need to be made with the applicant as soon as possible to explain the impacts COVID-19 may have on processing applications and to negotiate an extension of time directly from the applicant.
Any agreements should be followed up in writing.
New applications, including internal review applications
- Include advice in acknowledgement letter of the impact COVID-19 may have on progressing applications
- Seek extensions of time, section 14A or negotiated, as required.
When asking for an extension, you must explain why it is being requested. Each agency will need to decide how best to phrase the request in their specific circumstances but given the current events and the possibility of office closures, requesting extensions is a reasonable way for agencies to manage any potential disruption to application processing.
If a decision on an FOI application will not be made within the statutory timeframe due to delays, this will result in a deemed refusal being made under section 19(2) of the FOI Act. The applicant will therefore be entitled to apply to either the Principal Officer of the agency or the Ombudsman for a review.
While an applicant does not have to agree to a request for an extension of time, explaining the agency’s reasons will assist the applicant to understand the unusual circumstances which have caused the request may mean there will be less review requests made. Communication and recordkeeping will be vital during this challenging time.