Section 21 - Time within which formal requests to be decided

Section 21 prescribes the timeframe for deciding access requests and the circumstances where an agency or Minister may extend timeframes.

Section 21:

• creates an obligation on agencies and Ministers to take all reasonable steps to notify an applicant of a decision ‘as soon as practicable’;
• sets a maximum period of 30 days for the decision to be notified; and
• prescribes limited circumstances where the 30 day timeframe can be extended.

The effect of section 21 is to oblige agencies and Ministers to deal with a request expeditiously.²

An agency or Minister must notify an applicant of its decision:

• as soon as practicable; and
• no later than 30 days after the day a valid request is received.⁸

The 30 day timeframe begins the day after a valid request is received.⁹ A valid request means a request that meets the requirements in section 17.

This means that time may begin to run:

• the day after the agency or Minister receives payment of the application fee;¹⁰
• the day after the agency or Minister decides to waive the application fee;¹¹
• the day after the agency or Minister receives payment of the reduced application fee;
• the day after the applicant clarifies the request in a way that complies with section 17(2); or
• the day after whichever of the following days is the shorter period:
  • the day the request is transferred to the agency or Minister; or
  • 14 days after the date the original valid request was received by the transferring agency or Minister.

The 30 day timeframe includes all calendar days. This means weekends, public holidays, and any closedown periods – not just business or weekdays.

If the due date for a decision falls on a weekend or public holiday, the due date moves to the next business day.¹²

The 30 day timeframe may be extended:

• by up to 15 days where third party consultation is required;¹⁶ or
• by up to 30 days if the applicant agrees to the extension.¹⁷

The period under section 21(2)(b) may be extended any number of times, with the applicant’s agreement.¹⁸

The agency or Minister must notify the applicant of its decision no later than the day after the extended or further extended period ends.²⁰

An agency or Minister may extend the initial 30 day timeframe by up to 15 days if third party consultation is required under sections 29, 29A, 31, 31A, 33, 34 or 35.²²

Under Professional Standard 3.1, an agency must not extend the time under section 21(2)(a) unless third party consultation is being undertaken or will be undertaken. This means an agency should not extend the timeframe if third party consultation is speculative or will not be undertaken.

To determine whether consultation will be undertaken, an agency may need to wait until:

• some or all documents containing third party information have been identified; and
• it is determined third party consultation is practicable in the circumstances.

Section 21(2)(a) can only be used to extend the 30 day timeframe once. For example, where consultation is undertaken in accordance with the requirements of sections 33, 34 and 35, the agency is entitled to one extension of up to 15 days, not three separate extensions.

A third party should be given a reasonable timeframe to provide their views. However, an agency is not required to wait for a third party to provide its views before making a decision.

What constitutes a ‘reasonable’ timeframe for consultation will depend on the circumstances, including the number of documents, the nature of the information and the complexity of the issues involved. As the Act only allows for an extension of 15 days when undertaking third party consultation, it may be reasonable to allow two weeks for consultation to occur.

The 30 day timeframe may be extended by up to 30 days with the applicant’s agreement.²⁴

An agency or Minister can only seek multiple extensions of time by:

• a single extension of up to 15 days for consultation in the first instance under section 21(2)(a); followed by any number of additional extensions of up to 30 days with an applicant’s agreement under sections 21(2)(b) and 21(3); or
• an extension of up to 30 days with the applicant’s agreement in the first instance, under section 21(2)(b); followed by any number of additional extensions of up to 30 days with the applicant’s agreement under section 21(3).

Agencies and Ministers should not impose a 15 day extension under section 21(2)(a) if the agency or Minister has already extended the timeframe by up to 30 days with the applicant’s agreement. This is contrary to the object and intent of these extension of time provisions.

The timeframe for making a decision cannot be extended if it has already expired.³⁰

For an extension of time to be valid under the Act, an agency or Minister must:

• impose the 15 day extension before the initial 30 day time frame expires;³¹
• obtain the applicant’s agreement to a 30 day extension of time:
  • before the initial 30 day time frame expires;³² or
  • before the 45 day time frame expires, where a 15 day extension has already been imposed under section 21(2)(a);³³
• obtain the applicant’s agreement to a further 30 day extension of time before the preceding 30 day extended time frame expires.³⁴

An agency or Minister must notify an applicant in writing if the period for deciding a request is extended or further extended.³⁶

To ensure an applicant is aware of the circumstances and reasons for the extension, Professional Standard 3.2 requires this notification to state:

• under which subsection of section 21(2) the time has been extended or further extended;
• the particular reasons for the extension; and
• the number of days by which the agency is extending the due date.

Reasons for extending a timeframe might include: to undertake third party consultation, to allow further searches to be conducted, or to provide additional time to assess documents.

Agencies and Ministers should be transparent in explaining the reason for extending a timeframe.

The 30 day timeframe can also be paused, reset or waived in certain circumstances.

Where an agency or Minister intends to refuse to process a request on the basis it would substantially and unreasonably divert the resources of the agency from its other operations, the agency or Minister must first send a notice to the applicant under section 25A(6).

In this circumstance, the time to process the request pauses on the date the notice is provided to the applicant and does not resume until the day after the applicant confirms or alters the request. In other words, the period of time from the day an applicant is given the section 25A(6) notice to the day the applicant confirms or alters the request is not included in the 30 day time frame (or extended time frame).³⁸

Where an agency or Minister requires payment of an access charges deposit in accordance with sections 22(3) and 22(4):

• the timeframe for making a decision stops when the applicant is notified about payment of a deposit for access charges; and
• the timeframe for making a decision resets to ‘day one’ of the 30 day timeframe on the day after the applicant pays the deposit.⁴⁰

If a notice is sent to an applicant requesting payment of an access charges deposit, section 22(6) allows an agency and applicant or Minister and applicant to discuss practicable alternatives for altering the request, including reducing an access charge in exchange for the applicant waiving, conditionally or unconditionally, compliance with the 30 day timeframe to process the request.

Any agreement under section 22(6) should be recorded and confirmed in writing.

If an agency or Minister makes any one of the following decisions, the agency or Minister’s written notice of decision must comply with the requirements in section 27:

• a decision to refuse access to a document either in part or in full;
• a decision to defer access to the document under section 24; or
• a decision that no document exists.

The Act does not prescribe a method for notifying an applicant of a decision to grant access to documents.

If an applicant is not notified of a decision within the 30 day timeframe (or by a later date agreed to by the applicant or imposed by the agency or Minister to conduct third party consultation), the applicant has the right to:

• apply to the Victorian Civil and Administrative Tribunal (VCAT) on the basis that the agency or Minister is taken to have made a decision refusing to grant access to the requested document in accordance with the applicant’s request;⁴³ and/or
• make a complaint to the Office of the Victorian Information Commissioner about the agency or Minister’s delay in making a decision on the applicant’s request.⁴⁴