Application of section 41 RTI Act

Relevant considerations

1. Have all irrelevant considerations been disregarded?

Section 41(3) of the RTI Act specifically prohibits consideration of any:

  • reasons the applicant gives for seeking access; or
  • belief the decision maker has about the applicant's reasons for seeking access.

2. What does ‘substantially and unreasonably’ mean?

The term ‘substantially and unreasonably’ is not defined in the RTI Act.  In 60CDYY and Department of Education and Training [2017] QICmr 52A (7 November 2017) at [12], the Acting Right to Information Commissioner noted that ‘Substantial’ is relevantly defined as meaning ‘considerable amount, quantity, size, etc.: a substantial sum of money’ and ‘of a considerable size or value: substantial funds’; and  ‘Unreasonable’ is relevantly defined as meaning ‘exceeding the bounds of reason; immoderate; exorbitant’ and ‘immoderate; excessive: unreasonable demands’.

3. Would the impact on the agency or Minister's functions be 'substantial'?

This is a question of fact.  Section 41(2) requires an agency or Minister to consider the resources involved in dealing with the application, including those necessary to:

  • identify, locate or collate the documents
  • assess whether to allow access to the documents, including examining the documents or consulting with a relevant third party under section 37 of the RTI Act
  • make a copy or edited copy of the documents; or
  • notify the applicant of any final decision on the application.

The considerations listed in section 41(2) are not exhaustive and other considerations may be taken into account as appropriate.

While an agency is required to consider how much time an application is likely to take to process, a precise assessment is not required as this assessment may in itself substantially and unreasonably divert the agency's resources.1

In determining whether an application would substantially impact the agency or Minister's functions, it is relevant to consider:

  • the agency or Minister's resources, given that they must be used in numerous ways, not merely on a single application;2 and
  • the agency's size.3

4. Would the impact on the agency or Minister's functions be 'unreasonable'?

In reviews requiring a detailed consideration of whether processing an application would be "unreasonable", factors considered in ROM212 and Queensland Fire and Emergency Services (Unreported, Queensland Information Commissioner, 9 September 2016) may be relevant.4 These include:

  1. Whether the access application provides a sufficiently precise description to the agency, so that the documents sought by the applicant could be easily identified and considered by the agency.5
  2. The public interest in disclosure of documents requested in the access application. This may involve an assessment of whether the subject matter of the documents sought are a topic of widespread public debate or concern.
  3. Whether the request is a reasonably manageable one, giving due but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with access applications.
  4. The agency’s estimate as to the volume of documents captured by the request and the resources likely needed to process the request.
  5. Whether the applicant and the agency has made reasonable efforts to negotiate a scope that can be processed by the agency.
  6. The statutory time limit for making a decision on the access application.
  7. The degree of certainty that can be attached to the time estimated by the agency to process the request. For example, documents that may require third party consultation or research into a particularly complex factual background may carry the risk of taking more time to consider than the agency’s initial estimate.
  8. Whether the applicant is a repeat applicant to that agency or has sought the same documents previously through requests to other agencies or through administrative access schemes.

It is important to note that none of the above factors are determinative on their own. Relevant factors must be considered in the context of the specific application.

  • 1 McIntosh v Victoria Police [2008] VCAT 916 (16 May 2008).
  • 2 Middleton and Building Services Authority (Unreported, Queensland Right to Information Commissioner, 24 December 2010) at paragraph 33.
  • 3 Middleton and Building Services Authority (Reported, Queensland Right to Information Commissioner, 24 December 2010) at paragraph 31.
  • 4 In Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550, Senior Member Proctor listed these factors which had been taken into account in other jurisdictions in deciding whether an access application is unreasonable.
  • 5 As Branson J stated in Radicic v Australian Postal Commission [1999] FCA 574 at [28]: The FOI Act is concerned with the provision of access to documents and does not, by the provisions, require the handing over of large portions of the records of a government agency to allow an individual to search them for himself or herself.

Last updated: May 1, 2018