Out of time external review applications
You may find that OIC requests preliminary documents and assistance even when an application for external review is received outside the 20 business day statutory timeframe. This is because we are required to consider whether to exercise our discretion to accept the application ‘out of time’, which is specifically provided for by the RTI and IP Acts1.
The following factors are taken into account when considering whether to accept an application ‘out of time’:
- The extent of, and any reasons for, the delay in applying for external review with OIC.
- The relative balance of fairness (i.e. whether the agency/applicant would be prejudiced by OIC accepting/not accepting the application).
- The merit of the application (i.e. how likely it would be for the Information Commissioner to reach different decision).2
The same discretion is available to agencies when considering ‘out of time’ internal review applications. However, the timeframe for reaching a decision on an internal review application is fixed at 20 business days and cannot be extended.
1. Section 101(1)(d) of the IP Act and section 88(1)(d) of the RTI Act.
2. Young and Workers’ Compensation Board of Queensland (1994) 1 QAR 543 at paragraph 22 which considered section 73(1)(d) of the repealed Freedom of Information Act 1992 (Qld) which operates in the same way as the above sections.