Explaining your review rights - a guide for applicants

Overview

The purpose of this information sheet is to assist applicants1 to understand how to exercise their review rights for decisions made on access applications under the Right to Information Act 2009 (Qld) (RTI Act) and access and amendment applications under chapter 3 of the Information Privacy Act 2009 (Qld) (IP Act).

What are my review rights?

You may apply for either internal review or external review of certain decisions made by an agency2 under the RTI Act or IP Act.

An agency must notify applicants of their review rights in writing. This will usually be contained in a letter advising you of the decision.3

The Office of the Information Commissioner’s (OIC) Enquiries Service4 can provide general guidance on reviewable decisions but may not be able to advise definitively whether you have a right of review as this can depend on the specific circumstances of your application.

Keep in mind that you are not entitled to ask for more documents, or for different documents, on review.

What is an internal review?

An internal review is a process conducted by another officer within the agency who is no less senior than the original decision-maker. The internal review officer is required to consider your application and relevant documents and make a new decision as if the original decision had not been made.

There is no fee for internal review applications.

How do I apply for an internal review?

An application for internal review must:

  • be in writing
  • provide an address where correspondence can be sent (this can be an email or a postal address)
  • be made within 20 business days from the date stated on the decision notice, not from when you receive the notice (unless the agency allows further time); and
  • be lodged at the office of the agency. If you are unsure where to submit your internal review application, contact the relevant agency that made the decision.

Note

Only business days are included in the calculation of timeframes in the RTI Act and IP Act. Weekends and notified public holidays do not count.

How long does an internal review take?

An agency has 20 business days to give an applicant written notice of the internal review decision.

If you do not receive a decision from the agency within the 20 business days, you may apply to the OIC for an external review.

What are the advantages of an internal review?

There are a number of advantages for applicants applying for an internal review of the original decision prior to seeking an external review, such as:

  • it gives you the chance to have your application reviewed at the agency level by another officer
  • an internal review decision notice (and possibly more released information) should be provided within 20 business days. In most cases, this will be a shorter timeframe than that required to conduct an external review.
  • you can submit new arguments and evidence for consideration by the agency which may assist them to further consider other relevant public interest factors in determining what information can be released.

If you are dissatisfied with the outcome of an internal review, you have the right to apply for an external review.

What is an external review?

External review is a process which allows certain decisions made by agencies under the RTI Act and IP Act to be independently reviewed by the Information Commissioner. You can seek an external review if you are not happy with the first decision made by the agency or if you had an internal review and are not satisfied with that decision.

An external review reconsiders all aspects of the original decision including questions of law, questions of fact, discretion and policy.

It is not necessary for an applicant to have an internal review before applying for external review.

How do I apply for an external review?

If you are not satisfied with the decision made by the agency, either on your original RTI or IP application or at internal review, or the agency did not make a decision within the required timeframe, you may apply to have the decision externally reviewed by the Information Commissioner.

An application for external review must:

  • be in writing
  • be made within 20 business days from the date stated on the decision notice
  • provide an address
  • give details of the decision for review; and
  • be lodged with the OIC by one of the following methods:

In person: Level 8, 160 Mary St, Brisbane
Post: PO Box 10143, Adelaide Street, Brisbane, Qld, 4000
Fax: 07 3405 1122
Email: administration@oic.qld.gov.au
Online: www.oic.qld.gov.au

There is no fee for making an external review application.

Although it is not a requirement, you may also include the following information which may assist the OIC in early assessment and processing of your application:

  • reasons for the application for external review
  • relevant background information
  • copies of decisions received from and correspondence exchanged with the agency
  • any other documents or information that is relevant to or which supports the application.

If you have not made your application within 20 business days you should provide an explanation for the delay as part of your external review application. The OIC will advise if an extension of time is granted by the Information Commissioner.

How long does an external review take?

The time taken by the OIC to complete an external review varies depending on the particular circumstances of each application. The OIC’s Early Assessment and Resolution team aims to resolve a majority of external reviews in under 90 days.

In other cases, for example, where the external review involves complex issues or large numbers of documents, it may take significantly longer for the OIC to informally resolve an external review. The OIC will work with all participants of an external review to encourage settlement of an external review without the need to issue a formal decision.

Where an external review cannot be informally resolved, the OIC will proceed to make a formal decision on the matter. External reviews requiring a formal decision will generally require approximately one year to finalise.

The Information Commissioner uses a range of strategies to ensure external reviews are handled in a timely way and may involve one, some or all of the following five stages:

  1. Preliminary inquiries
  2. Early assessment and resolution
  3. Informal resolution
  4. Preliminary view
  5. Decision

Do I have any other review rights after an external review?

You may have limited rights of appeal following an external review.

Queensland Civil and Administrative Tribunal (QCAT)

There is a limited right of appeal from a decision of the Office of the Information Commissioner (OIC) to the Queensland Civil and Administrative Tribunal (QCAT). An appeal to QCAT can only be made on a question of law and after OIC makes a formal decision which is adverse to you.  There is no right of appeal if you simply disagree with the outcome of the external review. There is no right of appeal if OIC informally resolves an external review.  This must be done within 20 business days from the date of the decision.

For information about filing an appeal with QCAT go to www.qcat.qld.gov.au. The LawRight5 Self Representation Service may be able to provide assistance with QCAT matters relating to RTI. They can be contacted on 3846 6317.

1 In this information sheet the term ‘applicant’ includes a consulted third party.
2 In this information sheet references to an ‘agency’ include a Minister.
3 This is known as a notice of decision or a ‘prescribed written notice’.
4 The Enquiries Service can be contacted on (07) 3234 7373 or enquiries@oic.qld.gov.au.
5 LawRight was formerly known as QPILCH. For more information see www.lawright.org.au/cms/page.asp?ID=61114.

Current as at: February 28, 2017