In effect from: 1 July 2025

Under the Right to Information Act 2009 (RTI Act) people have the right to apply to an agency or Minister for access to documents. This access is subject to limitations set out in the RTI Act. These limitations include situations where an agency can refuse to deal with an application.

Agencies must have a pro-disclosure bias when making this decision and can decide to process an application even if they would be permitted to refuse to deal with it.

Note: references to an agency on this page include a Minister.

Refuse to deal because all information is exempt

If every document applied for, or every document in a category of documents applied for, would be exempt from release under one of the provisions in schedule 3 an agency can refuse to deal with the application under section 40 of the RTI Act.

Section 40 applies where the application, or part of the application, relates to all documents containing:

  1. information of a stated kind; or
  2. relating to a stated subject matter.

It can also apply where the applicant seeks access to documents:

  1. of a stated class of a stated kind; or
  2. of a stated class relating to a stated subject matter.
  3. Information of a stated kind: all legal advice received by the agency about closing Rose Rd.
  4. Relating to a stated subject matter: all documents containing information about the IT contract with Tamed Lightning Pty Ltd.
  5. Stated class of a stated kind: all briefing notes to the Minister.
  6. Stated class relating to a stated subject matter: all briefing notes to the Minister about the Tamed Lightning contract.

Examples

The deciding factor in applying section 40 will be the words used by the applicant in describing the subject matter of the documents sought. Deciding whether the scope of the application meets the first requirement of section 40 does not involve examining the documents or identifying exempt information provisions and working backwards. The starting point is always what the applicant has written.

If the first consideration is satisfied you then need to decide if the documents would be entirely comprised of exempt information.

In order for section 40 to apply, the contents of the documents applied for must be exempt from release under schedule 3. If the contents would be a combination of exempt information and contrary to the public interest information you cannot refuse to deal under section 40.

Examples

In the earlier examples, applications for ‘legal advice about the decision to close Rose Rd’ and ‘all documents containing information about the transport contract with Tamed Lightning Pty Ltd’ satisfy the first requirement of section 40.

Only the first application—for legal advice about the road closure—satisfies the second requirement that all documents would be entirely comprised of exempt information, as legally privileged information is exempt from release.

While it is common for applications dealt with under section 40 to involve only one exempt information provision it is not a requirement.  For the purposes of section 40, information in the documents can be exempt under multiple provisions of schedule 3.

Identifying and searching for the documents will generally not be required for exempt information provisions that contain no exceptions.

However, where the exemption provision does contain an exception, the agency will generally need to review the information. For example, schedule 3, section 10 lists situations in which information that otherwise falls within the exemption provision will not be exempt. In most circumstances, the agency cannot be satisfied that the information is exempt until they have determined that the exceptions do not apply (Commissioner of the Police Service v Shelton & Anor [2020] QCA 96).

If you refuse to deal under section 40, you must set out in the prescribed written notice:

  • the specific exempt information provision or provisions which apply; and
  • the reasons for the decision for classifying the information as exempt information.

Refuse to deal because of effect on functions 

If dealing with an application would result in a substantial and unreasonable diversion of resources then an agency can refuse to deal with the whole application. If the applicant has more than one application, the agency can consider the impact of all current applications from the applicant.

The intention of this section is to find a balance between the pro-disclosure objectives of the legislation and the unreasonable disruption that could be caused to the performance of an agency’s daily operations if it was required to process voluminous requests for information.

This section examines the provisions and explains the steps that an agency must take before it can refuse to deal with an application on the grounds that to do so would cause a substantial and unreasonable diversion of its resources.

Does the ground of refusal apply?

The Right to Information Act 2009 (Qld) (RTI Act) contains a list of mandatory considerations that a decision maker must take into account when making a decision about the impact that processing an application would have on its resources.

You must consider the resources involved in:

  • identifying, locating and collating documents
  • deciding whether to give, refuse or defer access to documents, or give access to edited copies
  • consulting relevant third parties about documents
  • making copies of documents; and
  • notifying any final decision on the application.

You can also consider additional relevant factors relating to the resources required to deal with an application as the above list is not exhaustive.

However, you must not take into account the reasons the applicant gives or any beliefs you hold about why the applicant is applying for access.

Diversion of resources must be both substantial and unreasonable

It is important to remember that the diversion of agency resources must be both substantial and unreasonable.  If both elements are not satisfied, then section 41 of the RTI Act does not apply and the agency cannot rely on this ground to refuse to deal with the application.

The mere fact that an agency will be required to expend significant resources to process an access application is not, in itself, sufficient to satisfy the ground of refusal. It must also be shown that the diversion of resources or interference with normal operational functions is unreasonable.

While each agency's and application's circumstances will vary, some general factors that may be relevant (Smeaton v Victorian WorkCover Authority [2012] VCAT 1550) when deciding this include the:

  • size of the agency
  • ordinary allocation of RTI resources
  • ability of the agency to perform their other functions
  • statutory timeframe for making a decision; and
  • the public interest in disclosure of the documents requested.

What does substantial and unreasonable mean?

The term ‘substantially and unreasonably’ is not defined in the RTI Act. The Commissioner noted in 60CDYY and Department of Education and Training [2017] QICmr 52A (7 November 2017) that ‘Substantial’ is relevantly defined as meaning a ‘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’.

If you decide that processing the application would be both a substantial and unreasonable diversion of agency resources, you must follow the process in section 42 of the RTI Act before refusing to deal with the application. Note that 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.

This means that you must:

  • give a written notice of intention to refuse to deal (NIRD) to the applicant, advising them that the agency intends to refuse to deal with the application
  • advise the applicant that, for a period of 10 business days from the date of the NIRD (or a longer period as agreed), the applicant may consult with you to make the application in a way that removes the grounds for refusal; and
  • give the applicant information which will help them make an application which would remove the grounds for refusal, as far as is reasonably practicable.

The NIRD must also advise the applicant that:

  • they may confirm or narrow their application by giving the agency written notice
  • if they narrow their application, then the agency will consider if the changed application would result in a substantial and unreasonable diversion of resources and make a final decision about whether it can be processed or will be refused;
  • that they will not have another opportunity to consult and narrow their application; and
  • if they don't respond in writing either confirming or narrowing their application by the end of the prescribed consultation period (explained below) they will be considered to have withdrawn their application

It is critical that your NIRD comply with section 42. Even if processing the application would substantially and unreasonably divert your agency's resources, if your NIRD does not meet the requirements of section 42, your decision may not be upheld on review.

Please see below for a template letter agencies may wish to use or adapt for their Notice of Intention to refuse to deal with the application.

Hints for communicating with the applicant

Applicants often misunderstand the purpose of the NIRD and thinks it is the agency’s decision to refuse to deal with the application.

It is important to ensure the NIRD is as simple and uncomplicated as possible. It must clearly explain that the agency is not refusing to deal with the application at this stage and outline the consultation requirements as required by section 42 of the RTI Act.

Communicating clearly with the applicant will:

  • help them understand that they have an opportunity to consult with you to change their application so that it can be dealt with
  • help avoid the applicant not fully understanding the purpose of the NIRD, which can result in them running out of time and the application being considered withdrawn; and
  • inform applicants that the NIRD does not give them any rights of review.

In addition to the NIRD, you could also contact the applicant by telephone to explain the process. This can make the process less formal and help the applicant gain a better understanding of the situation by giving them a chance to ask questions and discuss ways they could narrow the scope of their application to remove the ground of refusal.

The timeframe that applies to the NIRD process is the prescribed consultation period. The prescribed consultation period is ten business days or a longer period agreed between the agency and the applicant; there is no limit on how long the prescribed consultation period can be extended. The processing period is extended by the length of the prescribed consultation period.

The prescribed consultation period can never be less than ten business days, so when a NIRD is issued, ten business days are automatically added to the processing period. Even if the applicant responds quickly, for example if they  successfully narrow their application three business days after the NIRD is issued, the processing period is still extended by ten business days.

Applicant does not respond in writing

After the NIRD is issued, the agency must give the applicant a reasonable opportunity to consult with them, with a view to making their application in a form that would remove the ground for refusal.

If the applicant does not respond in writing either confirming or narrowing the application, then they are taken to have withdrawn the application at the end of the prescribed consultation period. The applicant cannot apply for an internal or external review as it is not a reviewable decision.

As explained above, agencies can agree to extend the prescribed consultation period if the applicant needs further time to respond.

OIC encourages agencies to contact the applicant to inform them of the requirement for a written response. This is particularly relevant where the applicant has consulted verbally but not provided a response in writing.

Applicant responds in writing confirming the application

If the applicant confirms the unchanged scope of their application in writing, the agency can refuse to deal with it if they consider it would still result in an unreasonable and substantial diversion of agency resources. The applicant must be provided with a prescribed written notice of the decision.

This is a reviewable decision.

Applicant responds in writing narrowing the application

If the applicant responds in writing and narrows the scope of the application, the agency must again consider if dealing with the changed application would substantially and unreasonably divert agency resources as per section 41 of the RTI Act.

The agency is not required to consult with the applicant again. You may, however, give the applicant a further opportunity to narrow the scope of the application if you consider it appropriate, extending the prescribed consultation period as needed.

If the agency decides that dealing with the changed application would still result in a substantial and unreasonable diversion of agency resources then they can refuse to deal with it. Once a decision is made to refuse to deal with the application, the applicant must be provided with a prescribed written notice of the decision.

This is a reviewable decision.

If the agency decides that the changed application has removed the ground for refusal, then the application must be processed.  Although there is no requirement to do so, agencies should confirm the narrowed scope and tell the applicant that their application will be processed.

Dear [applicant's name]

Notice of intention to refuse to deal with your application under section 41 of the Right to Information Act 2009

I refer to your application received by [name of agency] on [date] in which you sought access under the Right to Information Act 2009 (RTI Act)to:

[state what the applicant applied for]

I have not yet made a decision on the documents relevant to your application. However, I have formed the view that the work involved in dealing with your application would substantially and unreasonably divert the agency’s resources.  I am writing to consult with you about this and to give you an opportunity to alter or clarify your application.

If your application is not changed then I intend to refuse to deal with it.  Please note, I am not yet refusing to deal with your application and, as such, you cannot seek a review of this letter.

Why is it a substantial and unreasonable diversion of resources?

Processing an RTI application involves a number of steps, including identifying, collating, coping and preparing the documents, deciding whether to give, refuse or defer access to the documents as well as preparing several pieces of correspondence, including decision notices to any parties to the application.  The RTI Act requires this process to be undertaken within the statutory timeframe of 25 business days, or a longer period, if requested.

In excess of [number of documents and {if relevant} hours of audio/visual recordings] have been identified as responsive to the current scope of your RTI application.  In relation to the processing of your request, the estimated time to process your RTI application is over [number of hours].  [Please refer to Attachment A of this notice which outlines the preliminary processing time.{Delete if not using}]

On this basis, I have concluded that processing your application would substantially and unreasonably divert the resources of this agency.

What can you do?

Before refusing to deal with your application on this ground, the Act gives you the opportunity to consult with this agency to amend your request into a form which would mean this agency could deal with it.

[To assist you in narrowing the scope of your application, I have provided an outline at Attachment A which provides a list of categories of documents that have been identified through our search processes.{Delete if not using}]

I am happy to discuss this matter with you if you need any more information or assistance in changing your application. Please note that the RTI Act provides a timeframe of 10 business days from the date of this notice for you to consult with me to make your application in a way which would allow the agency to process it. [I am happy to allow you more time if you need it {depending on the circumstances, you may want to consider allowing them additional time at this stage}].

When is a response required?

I require a written response from you by [date] either:

  • confirming your original application; or
  • outlining the changes you would like to make to narrow the scope of your application.

Please provide your written response by letter or email to [include email and postal addresses].

If you narrow your application then consideration will be given to your revised scope to decide if dealing with your changed application would still result in a substantial and unreasonable diversion of this agency's resources. You will not be given another opportunity to consult as the requirement to give you a notice and allow you to consult with this agency does not apply to your narrowed application.

If you fail to respond in writing by the above date then your application will be considered to be withdrawn. If you need additional time to respond in writing, please contact me.

Should you wish to discuss your application in any way please do not hesitate to contact me on [contact details].

Kind regards

[Name]
[Designation]

ATTACHMENT A

[Note:  In some circumstances, preparing a detailed estimate of the time it will take and a breakdown of the documents to this level will place an unreasonable strain on agency resources. In those circumstances, agencies may wish to not use this table and instead rely on a more generic overview of the time and pages involved. If providing the information in the below table would not place too great a strain on the agency, it can serve as a valuable tool for an applicant to narrow their scope.]

ESTIMATED PROCESSING TIME

[Note that these are just examples and depending on the application and your agency more or fewer actions may be involved in processing the application, for example some applications may require retrieval of documents from long term storage.]

The estimated time required to fulfill the requirements of the RTI process is outlined below:

RTI Processing Item

Approx. number of hours

Initial Processing

- preparing correspondence to applicant associated with processing application

 

Search and Retrieve Documents

- searches undertaken by business units

- locating and retrieving relevant files

- identifying responsive documents

 

Copy Documents

- printing documents

- copying/scanning documents from files and reports

 

Examining Documents

- examining approx. [number of] documents

 

Examining Audio and Video Recordings

- approx. [number of] hours

 

Consultation (approx. [number of] third parties)

 

Decision

 

TOTAL

hours

The calculations of the processing times are listed below in further detail with regard to the [number of] documents identified as responsive to your application:

  • Examining Documents - due to the nature of the content of the documents, an average of [number of documents per hour] was estimated to examine the responsive information, therefore approximately [number of hours] is estimated to examine the relevant documents.
  • Examining Audio Recordings/Video Footage - there are[number of] hours of audio/video material which will need to be examined
  • Consultation - approximately [number of] third parties are expected to be consulted in accordance with section 37 of the RTI Act.  Due to the large number of documents required for consultation, an estimated total of number of] hours has been included as the total consultation time.
  • Decision - a total of [number of] hours is estimated to prepare the Notice of Decision.

Refusal to deal because applicant has previously applied for the same documents 

Section 43 of the RTI Act enables an agency to refuse to deal with an access application (or part of an application) if:

  • the applicant has previously made an access application to the agency
  • that application was not taken to have been withdrawn under sections 42(4) of the RTI Act
  • the applicant makes a new application to the same agency for access to one or more of the same documents applied for under the first application; and
  • the applicant does not give a reasonable basis for applying again.

Section 78P of the RTI Act enables an agency to refuse to deal with an amendment application (or part of an application) in the same way, if the first application was not taken to have been withdrawn under section 78O(4) of the RTI Act.

For applications made under the former IP Act, sections 206M and 206N of the RTI Act, sections 43 and 78P also apply where the previous access or amendment application was made under the Information Privacy Act 2009 (Qld) (IP Act) prior to the 1 July 2025 amendments.

While the new application must cover the same documents previously applied for, it does not need to be phrased identically to the previous application. As set out in T95 and Queensland Police Service:

the previous application was for documents relating to ‘an examination authority’. The later application was for documents relating to ‘execution of involuntary order to the mental health board’. Based on the subject matter of the applications and the documents located in the first application, the Commissioner was satisfied that the scope of the later application captured the same information requested in the first application.

The first application can still be active, i.e., the decision not yet issued, when the agency refuses to deal with the second application.

What if the second application is a mix of new documents and previously applied for documents?

An agency can only refuse to deal with an application to the extent it seeks access to or amendment of the documents previously applied for. If part of the application is for new documents and part is for previously applied for documents, the agency can refuse to deal with those parts that are the same as the previous documents and deal with the rest of the application.

Example

An applicant applied one year ago for 'all documents about dog attacks from 1 January 2016 until now'. An application is taken to apply to documents in existence on the day the application is received. So, if the applicant makes a second application with the same wording, part of the second application will be for documents previously applied for and part of it will be for new documents.

The documents from 1 January 2016 until the date of the first application will be previously applied for and the agency can refuse to deal with that part of the application. However, all documents dating from the day after the first application until the date of their second application will be new documents, and the agency will need to process them.

The agency’s decision notice regarding the second application should set out both decisions (i.e. the decision to refuse to deal and the decision with respect to the new documents).

What if the first application went to, or is on, review?

An agency can refuse to deal with a later application for the same documents even if the first application was, or currently is, the subject of a review.

What is a reasonable basis for reapplying?

Each agency must determine whether any grounds for reapplying given by the applicant are reasonable, however these could include a change in circumstances that will impact the documents. For example, if access was previously refused because the release would prejudice an ongoing investigation which is now finalised, the fact that the investigation is finalised would be a reasonable basis for reapplying. If amendment was refused because the applicant didn't have evidence their information was incorrect, a good reason to reapply could be that they now had that evidence.

Other reasons could include the loss or destruction of the documents, a change in family relationships or family circumstances that could alter the weighting of the public interest factors, expiry of a confidentiality clause, or the applicant having new information.

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