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’. For more information, see our publication – What if an agency delays making a 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.