Providing access to documents

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.

Once the applicant seeks access, the agency should give them the documents as soon as possible.⁶

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?

Under the RTI Act, access to documents must be given in the way the applicant requests⁷, unless it would:

• 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

The RTI Act includes a non-exhaustive list¹⁰ of ways access can be given,  including:

• inspection
• copies
• 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.

Creating written documents and transcripts

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.

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.

Redacting hardcopies

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.

Watermarks

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.

Copyright

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