Public holidays and agency shut-down periods — Calculating timeframes under the Freedom of Information Act 1982
Public holidays can affect an agency’s ability to process freedom of information (FOI) requests under the Freedom of Information Act 1982 (FOI Act) within the statutory timeframes, particularly between Christmas and the New Year when many Australian Government agencies shut down operations.
To ensure compliance with the statutory timeframes and make the most appropriate use of the extension of time provisions in the FOI Act, agencies are advised to plan well in advance of these holiday and shut-down periods.
Agencies are also encouraged to have early discussions with applicants to inform them of any anticipated effect the holiday or shutdown period may have on their FOI request.
The following information is provided to help agencies calculate when a processing period commences and ends during holiday and shut-down periods.
When does the processing period commence?
An agency must, as soon as practicable and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on a request for access (s 15(5)(b)).
The 30 day decision notification period commences on the day after the day the agency receives a request that meets the formal requirements of s 15(2) of the FOI Act (see Acts Interpretation Act 1901 s 36(1)).
In terms of calculating the days, an agency might think of the day on which the FOI request was received as being Day 0, and the following day is Day 1 and so on.
Many agencies have arrangements in place to receive FOI requests electronically. Section 14A of the Electronic Transactions Act 1999 stipulates the deemed time of receipt of an electronic communication, such as an email or a smartform for the purposes of a law of the Commonwealth. It provides that the time of receipt of an electronic communication is the time that it reaches the agency’s designated electronic address, for example: email@example.com.
Alternatively, the time of receipt of the electronic communication at another electronic address belonging to the agency, is the time when both the electronic communication reaches the agency’s designated electronic address and the agency becomes aware that the electronic communication has been sent to that address (s 14A(1)(b) Electronic Transactions Act 1999).
Taking the above into consideration, it is possible that the 30 day processing period may start on a weekend or a public holiday, regardless of whether an FOI request is received at a designated FOI mailbox or another agency mailbox.
- If a request is received on a Saturday the 30 day period commences running on Sunday
- If a request is received on a public holiday the 30 day period commences running the following day
- If a request is received on Christmas Day the 30 day period commences running on Boxing Day.
When does the processing period end?
The end of the 30 day processing period is affected by s 36(2) of the Acts Interpretation Act 1901. If the last day for notifying a decision falls on a Saturday, Sunday or a public holiday, the timeframe will expire on the first day following which is none of those days.
Options available to agencies
Agencies that are affected by a shutdown period are advised to prepare in advance of this period and consider the following arrangements:
- For electronic FOI requests to a designated FOI mailbox, consider an automatic reply informing the applicant of the shut-down period, when the office will re-open and what steps the agency will take to assess the validity of the request upon return to the office. You may also wish to foreshadow the need to contact the applicant to discuss a s 15AA extension of time agreement.
- If a 30 day processing period will end during a shut-down period, notify the applicant of the decision on or before the last business day or consider negotiating with the applicant for a staged release of documents, with release of documents both prior to and after the shut-down period. Alternatively, contact the applicant to seek a s 15AA agreement to allow a decision to be notified on or after the first day of business following the shutdown period, and notify the OAIC of the agreement.
Agencies are reminded that if an applicant is not notified of a decision on a request within the statutory time limit (including any extension), the agency cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (see sections 7(2) and (3) of the Freedom of Information (Charges) Regulations 2019).
For further advice in relation to extending the decision notification period please refer to Part 3 of the Guidelines issued under s 93A of the FOI Act.