The Freedom of Information Act 1991 (FOI Act) allows for the transfer of an FOI application under section 16 if the documents are not held by your agency and are:
- held by another agency (section 16(1)(a)), or
- more closely related to the functions of another agency (section 16(1)(b)).
Transfers can be made between state government agencies, local government councils and universities.
The act of transferring an application is a processing matter, not a determination under the FOI Act.
Transfer process
The following steps should be carried out for each FOI application you receive.
Step 1:
Search for documents within your agency. Proceed to step 2, if you:
- find no documents and believe the application relates to the functions of another agency, or
- do find documents but believe
- the documents found relate more closely to the functions of another agency, or
- the application itself also relates to the functions of another agency (also known as a partial transfer).
Otherwise: process the application as normal, if you do not believe the application may relate to the functions of another agency whether you find documents or not.
Step 2:
Contact the receiving agency to discuss the application scope before transferring.
- If agreed, a formal transfer must be made under section 16. Alternatively, see the Partial Transfer section below if a partial transfer is agreed.
- If not agreed, it is recommended you process the application as normal and advise the applicant they may wish to make an application to the proposed 'receiving agency' as well, as they may hold relevant documents.
If agreed, the transferring agency should:
- provide a copy of the application to the receiving agency, as well as a copy of any documents in scope held by the transferring agency (see section 16(2) of the FOI Act)
- advise the receiving agency of the receipt date of the application
- advise the applicant of the transfer and the date of the transfer, in writing (see sections 16(3) and 16(4) of the FOI Act)
- record the application as transferred for reporting purposes.
Formal transfers ensure the receiving agency has the appropriate authority to process the application as well as ensure a deemed refusal cannot be made against the transferring agency.
There is no obligation to transfer under the FOI Act. However, failing to transfer applications formally could lead to a review process.
As mentioned in step 1(b) above, your agency can partially transfer an FOI application where the transferring agency holds documents but:
- documents may also be held by another agency , or
- the application also relates to the functions of another agency .
For example, an application that requests information about a specific area is submitted to the relevant Authority on environment and climate protection. The Authority finds documents during its search but understands the local Landscape Board also has documents. The Authority should contact the Landscape Board and discuss whether it agrees to accept a partial transfer as it may have additional documents that are relevant to this application.
When transferring an application in part, you should:
- notify the applicant in writing at the time of transfer and
- advise which agency or agencies the application was transferred to.
A separate notice of determination must be issued by each agency for the portion of the application they have processed. Partial transfers do not need to be recorded for reporting purposes.
The transferring agency should not keep the application fee (if an application fee is attached) when transferring a FOI application in full. The fee should be refunded or transferred along with the application. The transferring agency must advise the applicant that they will instead need to pay the application fee to the agency that will receive the application if the fee is being refunded.
There is no need to refund an application fee paid via the SA.GOV.AU FOI application form unless the application is being transferred to a local council or university. The money paid via this form is collected by the Department of Treasury and Finance. See our Online FOI Applications Refund page for more information.
If your agency partially transfers an application to another agency, the transferring agency can keep the application fee. The receiving agency should not request that the applicant pay another application fee.
Should your agency receive a formal or partial FOI application transferred from another agency, your agency should:
- conduct a search for documents immediately to determine the need for an extension under section 14A
- send the applicant an acknowledgement of receipt, including:
- the agency’s due date as a result of the transfer (see Time Limit for Transfers section below), and
- that approval for an extension has been sought in accordance with section 14A, if necessary, and
- process the application as normal.
Contact the transferring agency to discuss the requirements for a formal transfer if a formal transfer has not been received.
Time Limit for Transfers
Transferring a FOI application should occur as soon as possible after your search. Your agency has 14 calendar days before it reduces the time the receiving agency has to process the application.
The receiving agency has one day removed from their usual 30 day processing time limit for every day past the 14 day transfer time limit (section 16(6)). The receiving agency’s time limit begins the day after it is transferred as prescribed by the Legislation Interpretation Act 2021.
The following scenarios describe the time limits for the receiving agency to deal with an FOI application that has been transferred to them. For the purposes of each scenario, it is assumed a search for documents has been undertaken by the transferring agency.
| Scenario | Date of transfer by Agency A | Date received by Agency B | Time limit for receiving agency to process application |
|---|---|---|---|
| Scenario 1 (application transferred within 14 days) | Day 2 | Day 3 | The application is now due on day 32. The receiving agency has 30 calendar days to process. |
| Scenario 2 (application transferred on the 14th day) | Day 14 | Day 15 | The application is now due on day 44. The receiving agency has 30 calendar days to process. |
| Scenario 3 (application transfer time 15 days or more) | Day 24 | Day 25 | Section 16(6)(2) means that the due date is locked at day 44 because the 14 day transfer deadline has passed. The 44 days cap can only be extended if an extension of time is made in accordance with section 14A. As this application was received by Agency B on day 25 and no section 14A extension was sought, it only leaves them 19 calendar days to process. |
An application that has not been transferred within 30 calendar days after it was received cannot be formally transferred under section 16 of the FOI Act.
Internal reviews on transfers
Applicants can only request an internal review from the agency who was formally transferred responsibility of processing the application and who made the determination.
Under the FOI Act, internal or external review rights only arise where a determination has been made.
The following examples describe four internal review situations based on the actions of the transferring agency.
- A formal transfer was made under section 16 of the FOI Act
- The applicant was advised within the 30 day timeframe
Where a review request has been received by the transferring agency, the agency will need to inform the applicant:
- the FOI Act only allows review rights for a determination made and this does not include a decision to transfer to another agency for progressing; and
- to lodge their request with the determining agency if they wish to pursue an internal review.
- A formal transfer was made under section 16 of the FOI Act
- The applicant was not advised of the transfer or was advised but not of the date of transfer
Where a transfer has occurred, however the applicant was not notified of this fact, then the criteria of sections 16(3) - (4) of the FOI Act have not been met.
This scenario includes:
- where no correspondence has been sent to the applicant from the transferring agency; or
- the applicant was notified after
- the receiving agency made its determination; or
- the transferring agency closed the application, without transferring, because it was already sent to the receiving agency by the applicant.
In this instance, the transferring agency is responsible for progressing the initial request as the requirements of section 16 have not been achieved. The applicant still has their internal review rights with the transferring agency once the 30 calendars has passed.
- A formal transfer was not made under section 16 of the FOI Act
Your agency will need to process the application as normal if no formal transfer has occurred. The applicant has their usual internal review rights (except for where the determination was made by
- A nil documents notification has been issued to the applicant
As this does not constitute a determination for the purposes of the FOI Act, no review rights exist.
It is recommended the applicant is advised this is a not a determination under the FOI Act and not reviewable but, if dissatisfied, a complaint can be made to the Ombudsman under the Ombudsman Act 1972.
Exempt agencies
An FOI application cannot be transferred to an agency that is not an agency under the FOI Act or is deemed exempt by Schedule 2 of the FOI Act or by regulation .
Documents created by an exempt agency
Documents created by an exempt agency are not automatically exempt if your agency holds them. Your agency must still process the application and make a determination.
With that said, your agency should also check that the documents captured by the FOI application are not exempt in respect of certain information or functions of agencies. For example, documents of the South Australian Certificate of Education Board relating to the results of students in SACE assessments are exempt information under the regulations and cannot be released.