For those of you who, like me, fondly remember their contract law lectures on the postal acceptance rule, it’s time to update our notes. The law has caught up with the digital age.
The Electronic Transactions Act has recently been amended. Unless the parties agree otherwise (or there’s an overriding legal rule), contractual offers are now deemed to be accepted when you’ve set yourself up to get electronic communications and the acceptance email hits the inbox. There’s a useful write up in Lowndes Jordan’s latest newsletter here.
It’s not just contracts that are affected by questions of when you “receive” that all-important missive. The legal clock starts ticking for responding to access requests under the Privacy Act the day after you receive the request too.
Section 11 of the Electronic Transactions Act defines when you are deemed to have received the request:
11 Time of receipt
If you’re set up to receive communications electronically, it doesn’t matter that the request comes in after hours, or that a staff member might not clear the inbox that day. The law says you’ve got it. You can start work on actioning it any time from the start of the following working day, so it’s fair to expect you to do exactly that.
People increasingly want to deal with agencies electronically, and so it has become normal practice to offer that service to them. Just the format has changed. Once, “electronic communication” meant that new-fangled thing called a fax. Now it’s email, direct submission through a website, text message or social media. The Ombudsmen have offered some advice on receiving requests through social media.
So it’s important to know how to calculate your deadlines for response. It’s common for agencies that receive access requests to think that they’ve got plenty of time to deal with them. But this isn’t really the case. Making a decision “as soon as reasonably practicable”, and within a maximum of 20 working days after you get the request is easy enough if the request is straightforward. However, that time disappears very quickly if the request is more complex, if relevant staff members are away, or you’re not sure where the information is. And the electronic acceptance rule can cut a day off the time that you may think you have to respond.
Now where were my law school notes again?