Application of section 43 RTI Act

Relevant considerations

1. Has the applicant made a previous application for the same documents?

The agency or Minister may only refuse to deal with the later application to the extent that the application seeks access to the same documents sought under the first application.13

However, an agency or minister cannot refuse to deal with a later application for the same documents where:

  • the first application was withdrawn;14 or
  • the terms of the first application were narrowed and documents in the later application fall outside the narrowed terms.15

2. Is there a ground on which an agency or Minister may refuse to deal with a later application for the same documents?

The grounds on which an agency or Minister may refuse to deal with a later application depend on which Act the first application was made under.

a)  First application made under the RTI Act

Where the first application was made under the RTI Act, an agency or Minister may refuse to deal with the later application if:

  • the agency or Minister had not decided the first application at the time the later application was made;16
  • the applicant had been given notice that access was to be given to the document or some of the documents sought in relation to the first application;17
  • the agency or Minster decided that the first application was an application for documents to which the RTI Act does not apply;18
  • the agency or Minister decided to refuse access to the documents in the first application;19
  • the agency or Minister refused to deal with the first application;20
  • the agency or Minister’s decision on the first application is the subject of a review21 and the review is not complete;22 or
  • the agency or Minister’s decision on the first application has been the subject of a completed review, other than an internal review.23

b)  First application made under IP Act

Where the first application was made under the IP Act, an agency or Minister may refuse to deal with the later application if:

  • the agency or Minister had not decided the first application at the time the later application was made;24
  • the applicant had been given notice that access was to be given to the document or some of the documents sought in relation to the first application;25
  • the agency or Minster decided that the first application was an application for documents to which chapter 3 of the IP Act does not apply;26
  • the agency or Minister decided to refuse access to the documents in the first application;27
  • the agency or Minister refused to deal with the first application;28
  • the agency or Minister’s decision on the first application is the subject of a review  and the review29 is not complete;30 or
  • the agency or Minister’s decision on the first application has been the subject of a completed review, other than an internal review.31

c)  First application made under the repealed FOI Act

Where the first application was made under the repealed FOI Act, the only ground for refusing to deal with a later application made under the RTI Act is contained in section 43(3)(a) of the RTI Act; where the agency or Minister has not decided the first application at the time the later application was made.32

The definition of ‘review’ in section 43(5) of the RTI Act excludes the application of section 43(3)(d) to reviews under the FOI Act.33 Therefore, an agency or Minister can not refuse to deal with a later application on the basis that:

  • the agency or Minister’s decision on the first application (made under the FOI Act) is the subject of a review and the review is not complete;34 or
  • the agency or Minister’s decision on the first application (made under the FOI Act) has been the subject of a completed review, other than an internal review.35
  • 13 Section 43(3) of the RTI Act.
  • 14 Sections 43(2)(a)(i) and 42(2)(b)(i) of the RTI Act.
  • 15 Sections 43(2)(a)(ii) and 43(2)(b)(ii) of the RTI Act.
  • 16 Section 43(3)(a) of the RTI Act.
  • 17 Section 43(3)(b)(i) of the RTI Act.
  • 18 Section 43(3)(b)(ii) of the RTI Act.
  • 19 Section 43(3)(b)(iii) of the RTI Act.
  • 20 Section 43(3)(b)(iv) of the RTI Act.
  • 21 ‘Review’ for the purposes of section 43(3)(d) is defined in section 43(5) of the RTI Act.
  • 22 Section 43(3)(d)(i) of the RTI Act.
  • 23 Section 43(3)(d)(ii) of the RTI Act.
  • 24 Section 43(3)(a) of the RTI Act.
  • 25 Section 43(3)(c)(i) of the RTI Act.
  • 26 Section 43(3)(c)(ii) of the RTI Act.
  • 27 Section 43(3)(c)(iii) of the RTI Act.
  • 28 Section 43(3)(c)(iv) of the RTI Act.
  • 29 ‘Review’ for the purposes of section 43(3)(d) is defined in section 43(5) of the RTI Act.
  • 30 Section 43(3)(d)(i) of the RTI Act.
  • 31 Section 43(3)(d)(ii) of the RTI Act.
  • 32 (Unpublished letter to agency).
  • 33 (Unpublished letter to agency).
  • 34 Section 43(3)(d)(i) of the RTI Act.
  • 35 Section 43(3)(d)(ii) of the RTI Act.

Last updated: April 23, 2013