Deferral of access and written notices

February 1, 2014 - 10:41am

If a decision-maker decides to give access to a document contrary to the views of a relevant third party, section 37(3)(c) of the Right to Information Act 2009 (Qld) (RTI Act) and section 56(3)(c) of the Information Privacy Act 2009 (Qld) (IP Act) requires the agency or Minister to give both the access applicant and the consulted third party a prescribed written notice of that decision.

The notice must comply with the requirements of section 191 of the RTI Act or section 199 of the IP Act so it must:

  • state the agency’s decision,
  • provide reasons for that decision,
  • state the day on which the decision was made, and by whom; and
  • give details about the parties’ rights of review.

In addition, the agency or Minister should advise that access to the documents which were subject to consultation will be deferred pending the outcome of any review action taken by the consulted third party. There is no need to withhold access to any other documents – it is only those documents or parts of documents (if only one part or parts of the documents were in scope)  the third party believes should not be released that need to be deferred.

Both the applicant and the third party have 20 business days from the date on the prescribed written notice to make an application for review. This includes those documents to which access has been deferred; therefore, providing a decision that is descriptive enough to give the access applicant an idea of the nature of the consulted documents – without prejudicing the third party – should assist the applicant to make an informed decision about whether they wish to exercise their right of review.

The agency must give the access applicant written notice when access is no longer deferred (either because the third party does not make an application for review or, if it does, the review has ended). This is not a prescribed written notice but, rather, a means of informing the applicant that access is no longer deferred. As a result, there is no need to comply with section 191 of the RTI Act or section 199 of the IP Act when drafting the letter to the applicant.