Application of section 36 RTI Act
1. Is a processing charge or access charge payable?
Note that both a 'processing charge' and an 'access charge' can be waived under Chapter 3, part 6, division 3 of the RTI Act.
a) Processing Charge
Under section 59 of the RTI Act, no processing charge is payable in relation to a document 'to the extent the document contains the applicant's personal information'.
A 'processing charge' is the charge prescribed under a regulation for seeking or retrieving a document and making a decision on the application.1
Under the Right to Information Regulation 2009 (Qld), the 'processing charge' is:
- nil if the agency or Minister spends no more than 5 hours processing the application; or
- $6.45 per 15 minutes or part of 15 minutes if the agency or Minister spends more than 5 hours processing the application.2
The following circumstances affect the way the 'processing charge' is calculated:
- if a document is not found in the place where, according to the agency or Minister's filing system, it ought to be located, the agency may only calculate the time that would have been spent by the agency or Minister in searching for or retrieving the document, if the document had been found in that place. Any other time must be disregarded.3
- if the agency or Minister's filing system should have indicated, but does not indicate, where a document is located, the agency may only calculate the time spent searching for or retrieving the document if the filing system had indicated where the document was and it had been found in that place. Any other time must be disregarded.4
b) Access Charge
An 'access charge' means the charge prescribed under a regulation in relation to giving access to a document.5
Under the Right to Information Regulation 2009 (Qld), the 'access charge' for a document is the actual cost incurred by the agency or Minister in all or any of the following:
- engaging another entity to search for and retrieve the document
- relocating the document as necessary for access to be given to the document
- transcribing any written document under section 68(1)(d)
- creating a written document under section 68(1)(e)
- otherwise giving access to the document (except for A4 black and white photocopies, which are to be charged at 20 cents per page).
'Access charges' do not include:
- the cost of an email, if access is given by emailing the document6
- the cost of a disc if access is given by giving the applicant a disc.7
2. Has the applicant been given a schedule of relevant documents and a charges estimate notice?
An applicant must be given a 'schedule of relevant documents' (unless this requirement is waived by the applicant) and a 'charges estimate notice', before the end of the 'processing period'.
a) Processing period
Section 18(1) of the RTI Act defines 'processing period' as a period of 25 business days from the day the application is received. Section 36 of the Acts Interpretation Act 1954 (Qld) (AIA) defines 'business day' as:
a day that is not a Saturday or Sunday, or a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.
Section 38(1) of the AIA explains the process for calculating periods of time. The effect of that section is that the day an application is received is counted as 'day zero' and the 'processing period' ends on or before the 25th business day from 'day zero'.
Section 18(2) of the RTI Act identifies periods of time that do not count as part of the 'processing period'. If third party consultation is undertaken under section 37 of the RTI Act, 10 business days for consultation do not count as a part of the 'processing period'.8
See 'Section 18 RTI Act' Annotation.
See 'Section 37 RTI Act' Annotation.
b) Schedule of relevant documents
The agency or Minister must give the applicant a 'schedule of relevant documents'. However, this requirement can be waived under section 36(1)(i) of the RTI Act. The 'schedule of relevant documents' should:9
- set out and give a brief description of the classes of documents relevant to the application; and
- set out the number of documents in each class.
However, an agency or Minister should not include any exempt information or contrary to public interest information in the schedule.
c) Charges estimate notice
Section 36(1) of the RTI Act requires an agency or Minister to supply a charges estimate notice (CEN) to the applicant before the end of the 'processing period'.
The notice is required even if charges are to be waived, or if no charges are payable (for example, if it is uneconomical to recover the charges). In such a case, however, the CEN could form part of the decision notice under section 54.
In order to issue a CEN, the agency or Minister must:
- decide if any 'access charge' or 'processing charge' is payable for the application; and
- estimate the amount of those charges.
3. Has the applicant narrowed the application after receiving the charges estimate notice?
The applicant has 20 business days from the date of the CEN to consult with the agency or Minister with a view to narrowing the access application to reduce the applicable charges. This 'revision period' is not counted in the 'processing period'.10
Significantly, the wording of section 36 of the RTI Act differs substantively from that of other sections concerning periods of time. The 'revision period' starts on the date of the first charges estimate notice (ie that day is 'day 1') and ends on the day the applicant confirms the application or, if the applicant narrows the application, the date the applicant confirms the narrowed application.
a) Applicant consults with agency or Minister to narrow application
If the applicant chooses to narrow their application to reduce the charge, the agency or Minister must give the applicant a new CEN.11 The applicant will again have 20 business days in which to withdraw or confirm their application, after which the application will be taken to be withdrawn. Agencies are limited to issuing a maximum of two CENs in relation to an access application.12
b) Applicant does not confirm, narrow, or withdraw the application within the prescribed period
If the applicant does not confirm, narrow or withdraw the access application within the prescribed period (20 business days from the date of the CEN or a longer period if agreed),13 the applicant is taken to have withdrawn the application at the end of the prescribed period.14
- 1 Section 56 of the RTI Act. [up]
- 2 Section 5 Right to Information Regulation 2009 (Qld). [up]
- 3 Section 5(2) Right to Information Regulation 2009 (Qld). [up]
- 4 Section 5(3) Right to Information Regulation 2009 (Qld). [up]
- 5 Section 57 of the RTI Act. [up]
- 6 Section 6(2)(a) of the Right to Information Regulation 2009 (Qld). [up]
- 7 Section 6(2)(b) of the Right to Information Regulation 2009 (Qld). [up]
- 8 Section 18(2)(d) of the RTI Act. [up]
- 9 Section 36(7) of the RTI Act. [up]
- 10 Section 36(7) of the RTI Act. [up]
- 11 Section 36(4) of the RTI Act. [up]
- 12 Section 36(5) of the RTI Act. [up]
- 13 Section 36(7) of the RTI Act. [up]
- 14 Section 36(3) of the RTI Act. [up]
Last updated: January 15, 2014