This guideline explains how to give an applicant access to documents under the Right to Information Act 20091 (Qld) (RTI Act), including the impact of third party copyright and when an agency can turn electronic information into a written document.
When can an agency give access?
An applicant has 40 business days from the date of the decision2, or from a deferred access period3, to access the documents, unless the agency agrees to extend this time. Before they can be given access to the documents they must pay any outstanding processing and/or access charges.4
An agency can send the documents with the decision notice, if there are no fees or charges owing and the documents do not fall under a deferred access period. If the documents are not being sent with the decision notice, the agency must tell the applicant how to access the documents.5 If access is deferred to any documents, that must be explained in the decision notice.
Access by download link
If access to the document is being given by way of download from a weblink (usually emailed to the applicant) the link must be active for at least 40 business days (or the relevant access period). If the link expires before the end of the access period then a new active link must be sent to the applicant (unless they advise they have accessed the documents).
If the applicant does not access the documents within the access period, their right of access expires, although the agency does have the discretion to extend this timeframe.
How can an agency give access?
- interfere unreasonably with the operations of the agency8
- be detrimental to the document or, due to its physical nature, be inappropriate; or
- involve copyright infringement of someone other than the State (refer to the discussion below).9
- viewing or hearing images or sounds
- transcriptions of sound recordings, shorthand writing or code; and
- creating a written document out of electronic information, such as a database.
The applicant and agency can agree to access being given in one of these forms, or can agree on another, more suitable, form.
Deleting irrelevant, exempt and contrary to the public interest information
Where an agency decides to refuse access to irrelevant11, exempt, or contrary to the public interest information, it must be deleted from a copy of the document before the applicant access the document.
Never remove information from original documents. Copies must always be made of the original documents and the information removed from the copies
Creating written documents and transcripts
These documents are not post-application documents because their creation is specifically authorised by the RTI Act.
Creating written documents from electronic information
Where information only exists electronically, such as in a database, an agency can create a written document from the electronic information to give access to it.12 The agency can only use tools which are generally available to it to create the written document.
Generally, the agency should only create a written document out of information which is in scope of the application. Methods of creating the written document will depend on the tools available to the agency but could include exporting to a spreadsheet or taking a screen capture.
Transcribing sounds, shorthand, or code
Where an agency has documents that are written in shorthand, code, or consist of words that can be reproduced as sounds, section 68(1)(d) allows an agency to produce a written transcript of the words, code, or sounds to give access to them.
Access to copies
Applicants can be given access to electronic copies (eg PDFs of documents provided by email, CD, USB or downloadable from a weblink) or hardcopies. Hardcopies may be given in the form of, for example, printouts, photocopies, large scale maps, building plans, or x-rays.
Access by inspection
Applicants can choose access by inspection or inspection may be the only form of access available, for example, where the document is subject to third party copyright. Documents must be redacted to remove exempt, irrelevant, or contrary to the public interest information before the applicant inspects them.
An applicant must be given a ‘reasonable opportunity’ to inspect the documents. What is reasonable will depend on the circumstances. An agency should consider the applicant's access to transport and any difficulties involved in travelling to the agency. It may be appropriate to send the documents to a branch of the agency closer to the applicant to facilitate inspection.
A ‘reasonable opportunity’ may also mean allowing the applicant to inspect the documents over several days, particularly if there are a large number of documents.
Depending on the contents of the documents, agencies may wish to consider supervising applicants during inspection.
Viewing images and hearing sounds
If a document is an audio or video document13, such as a phone recording or CCTV, the agency can arrange for the applicant to hear or view it, with any exempt or contrary to the public interest information removed.
If the agency does not have the appropriate equipment it will have to borrow or hire it. Any reasonable costs incurred in making such an arrangement can be passed on to the applicant as an access charge, but it cannot exceed the amount the agency actually spends.
Redacting video and audio recordings
See Managing access to digital video recordings for more information about removing exempt or contrary to the public interest information from, and providing access to, digital and audio recordings.
Methods of redaction
Electronic deletion from written documents
Most agencies use software such as Redax, a plug-in for Adobe Acrobat, or similar programs, which enable users to:
- delete information from scanned electronic documents
- make a notation about why information was deleted
- number each page
- insert watermarks such as ‘released under RTI’; and
- save the document as a copy of the original with material deleted.
Electronic copies can then be provided to the applicant in PDF format. However, it is important to ensure that extra steps are taken to prevent the document being altered or manipulated. For example, PDF documents can be password protected in Adobe Acrobat to prevent them from being altered.
While redaction is primarily done through electronic means, if an agency needs to redact information from a hardcopy document, it is important to use a method that completely obscures the information. The final copy must be carefully checked to ensure the information has been entirely removed.
Notation of reasons for removal
When information is deleted from documents, a notation should be made to identify the section under which it was removed. For example, the copies could be marked: ‘deleted: exempt information under section 48 RTI Act’ or ‘deleted: contrary to the public interest under section 49 RTI Act’ as appropriate.
It is recommended that documents released under the RTI Act be watermarked to indicate this. Agencies using Redax or similar software can insert the watermark across the electronic files. Where the document is not a written document, for example a CD or x-ray, the access copy can still be labelled or otherwise marked to indicate RTI release.
The RTI Act provides that if giving access in the form requested by the applicant (eg, copies) would breach the copyright of someone other than the State of Queensland, the agency can refuse that form of access and give access in a different, non-infringing form.14 It is not the role of RTI decision makers to interpret contractual arrangements and make complex determinations regarding copyright, but because copyright can impact the available forms of access, they need to be aware of copyright and make relevant inquiries as needed.
Determining if copyright applies to some or all of the documents15 requires a consideration of whether copyright subsists in the documents and, if so, whether it would be infringed by the agency making copies for release under the RTI Act. In Australia, copyright is governed by the Copyright Act 1968 (Cth) (Copyright Act).
The Commissioner discussed the application of the Copyright Act to providing access under the RTI Act in V11 and Brisbane City Council16 and Mt Cooth-tha Local Residents and Brisbane City Council17. Decision makers should refer to those decisions for guidance on determining if documents are subject to a third party's copyright.
If a decision maker decides to give access by way of inspection because providing copies would infringe copyright, they should ensure appropriate conditions are in place during inspection, for example, by ensuring there is adequate supervision, to prevent copying or reproduction of the copyright document.18
- 1 And Chapter 3 of the Information Privacy Act 2009 (IP Act).
- 2 Or, if relevant, another decision making entity such as the Information Commissioner – see section 69(3) of the RTI Act.
- 3 Section 69 of the RTI Act.
- 4 Section 60(1) of the RTI Act.
- 5 Section 54(2)(ii) of the RTI Act.
- 6 The RTI Act does not provide a specific timeframe for an agency to give access to documents. Section 38(4) of the Acts Interpretation Act 1954 provided that if no time is provided or allowed then the thing is to be done as soon as possible.
- 7 Section 68 of the RTI Act
- 8 or functions of the Minister
- 9 If a document is more than 25 years old or in the custody of the Queensland State Archives, the State Archivist may also direct that access not be given in 1 or more, but not all, of the forms mentioned in subsection (1) if, in the State Archivist's opinion, giving access in that form would be detrimental to the document's preservation or, having regard to the physical nature of the document, would be inappropriate, section 68(8).
- 10 Section 68(1).
- 11 Except where the information is ‘irrelevant information’ then access needs only be given to the copy with that information removed if the agency considers it is reasonably practicable to do so – section 73(3) of the RTI Act.
- 12 Section 68(1)(e) of the RTI Act
- 13 A document that consists of an article or material from which sounds or visual images can be reproduced
- 14 Section 68(4)(c) of the RTI Act.
- 15 Higgins and Education Queensland (Unreported, Queensland Information Commissioner, 31 March 1999).
- 16  QICmr 39 (6 August 2021), at paragraphs 17-50
- 17  QICmr 49 (27 September 2021), at paragraphs 26-76
- 18 Helping Hands Pty Ltd and Department of Education, Training and Employment (Unreported, Queensland Information Commissioner, 30 October 2012), paragraph 88.
Current as at: November 25, 2021