Application of section 68(4)(c) RTI Act

Relevant considerations

1. Is copyright in the information sought held by a person other than the State of Queensland?

2. If it is, would giving access in the form requested by the applicant infringe the copyright?

A claim of copyright is not, of itself, a ground for exemption or for withholding access under the RTI Act,1  however, it is relevant to the form of access given.  The RTI Act provides that access to a document may be given in a variety of different forms, for example: inspection, providing a copy or transcript, etc.2   Ordinarily when releasing documents, access must be provided in the form requested.3   An exception to this general requirement arises if access in the form requested by the applicant (a copy for example) would result in a copyright infringement because the copyright is not held by the State.  In such circumstances, the agency or Minister is permitted to give access in a form that would not infringe copyright (usually by way of inspection).4 

If an applicant seeks external review of a decision to provide an alternative form of access in this circumstance,5  the Information Commissioner will determine whether giving access in the original form requested by the applicant would infringe the copyright of a person other than the State.  If satisfied that it would, the Information Commissioner has no jurisdiction to consider the matter further. 

If access to the relevant information is given in another form, the applicant must not be required to pay a higher charge than would have been payable for access in the original requested form.6 

1 Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party) (Unreported, Queensland Information Commissioner, 19 December 2011) at paragraph 91 citing Higgins and Education Queensland (S 200/98, 31 March 1999, Information Commissioner), paragraphs 32-34.  
2 Section 68(1) of the RTI Act.
3 Section 68(3) of the RTI Act.
4 Section 68(4)(c) of the RTI Act, see Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party) (Unreported, Queensland Information Commissioner, 19 December 2011) at paragraph 91.
5 A decision to provide access in a form different to the form requested by the applicant is a reviewable decision under schedule 6 of the RTI Act, unless access in the form applied for would infringe the copyright of a person other than the State.
6 Section 68(5) of the RTI Act.

Last updated: September 25, 2013