The Right to Information Act 20091 (RTI Act) gives people the right to apply to an agency for documents which are in the agency’s possession or control. This information sheet is intended to assist applicants who are involved in a process with a Court and/or have applied for agency documents which are being held by a lawyer outside the agency. The two categories can often overlap, for example where the applicant is involved in a court process with an agency.
Documents available through the Courts
If you are involved in a Court process you will generally be able to access most relevant information held by third parties by asking the court for ‘discovery’ or asking the court to issue a subpoena. The Court Rules will set out when to use what method.
If a public sector agency holds the information you are after, you will be able to use the Court process to access information it holds. You may also choose to apply for the agency’s documents under the RTI Act.
Can I apply under RTI and use the Court process?
Yes, you may. You may choose to do both at the same time or at different times. Access to information through Court processes or an RTI application are both subject to certain exceptions and exclusions. This means you may not receive all the information you seek and that you may get a different result from different processes.
Will an agency ever refuse my application?
An agency cannot refuse your application just because you are involved in a court process which may allow you to acquire information. Access under a Court process is subject to its own rules and generally requires the approval or authority of a judicial officer; when you seek information in this way you may or may not receive it.
Can I ask the agency to make a quick decision?
The RTI Act requires an agency to carry out specific steps when they receive an RTI application and it sets out a specific number of days in which a decision must be made. While you can ask an agency if a faster decision is possible, there is no provision in the RTI Act for shorter processing times and an agency decision maker cannot take shortcuts with the requirements of the RTI Act. If you think you may need to apply through the RTI process as part of your Court matter you should make your application as soon as possible.
What if the documents I want are with the agency’s lawyers?
Agencies will sometimes instruct lawyers from outside the agency to act on their behalf. As part of this process the agency will usually give documents to the outside lawyers and the outside lawyers will produce documents, some of which will belong to the agency.
Will these documents be part of my application?
If documents relevant to your application are held by the agency’s outside lawyers, and the agency owns them, the agency has to consider them as part of your application. However this does not mean you will automatically be given access to them. The agency decision maker will consider the documents and make a decision based on the provisions of the RTI Act.
Will there be any documents the agency will not consider?
Not all of the outside lawyer’s documents will belong to the agency; there are specific rules which set out which documents belong to the agency and which belong to the lawyer. Only documents which belong to the agency can be considered as part of your application. If the outside lawyers are part of another agency then the agency you applied to may consider transferring part of your application to the other agency.
What if I don’t like what the agency decides?
If an agency makes a decision you do not agree with or refuses to deal with your application because you are involved in a court process you have the right to seek a review of the decision. You can seek an internal review from the agency itself or choose to bring it directly to the OIC on external review. Requests for an internal or external review must be made within 20 business days from the date of the decision.
Current as at: July 6, 2012