Key published decisions applying section 87 RTI Act
This decision recognises the impact of section 87 of the RTI Act on the onus on an agency on external review. The Information Commissioner stated that if an access application is made under section 44(1) of the RTI Act, an agency should give access unless doing so would, on balance, be contrary to the public interest. The Information Commissioner was satisfied that on external review the onus is on the agency to establish that the access would, on balance, be contrary to public interest.
In this case, the Department of Health had stated that it did not wish to make any submissions contending that the information in issue comprises exempt information or information, the disclosure of which would be contrary to the public interest. Therefore, the Information Commissioner found that the Department was required to give access to the information and that the Information Commissioner could not make a decision adverse to the application. [15-18]
This decision recognises the impact of section 87(2) of the RTI Act on the onus on a relevant third party who objects to disclosure of information on external review. As the Department of Environment and Resource Management had decided to release parts of the information sought in the access application, the RTI Commissioner acknowledged that the onus of establishing that disclosure of this information would, on balance, be contrary to the public interest rested with the external review applicant. The RTI Commissioner found that the external review applicant had not established that a decision to not disclose the information was justified and that disclosure of the information would not, on balance, be contrary to the public interest under section 49 of the RTI Act. 
Last updated: March 1, 2012