Refusal to deal - Previous application for same documents
Under the Right to Information Act 20091(Qld) (RTI Act) Queensland government agencies2 may, in certain circumstances, refuse to deal with applications for documents that the applicant has previously applied for under either the RTI or IP Act.
Where an applicant has already applied for the documents
Section 43 of the RTI Act enables an agency to refuse to deal with an application (or part of an application) where:
- the applicant has previously made an access application under the RTI Act or IP Act
- that application was not taken to have been withdrawn during the charges estimate notice process or after a notice of intention to refuse to deal was issued
- 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
- they do not give a reasonable basis for applying again.
Later request does not need to be identical to earlier request
The current application must be for the same documents previously applied for, but it does not need to phrased identically to the previous application.
In T95 and Queensland Police Service3, 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, ie a decision has not yet been 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 the same documents previously applied for. If part of the application is for new documents, that part must be dealt with.
Example
An applicant applied one year ago for 'all documents about dog attacks from 1 January 2016 until now'. Part of the 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.
Both decisions should be made together at the end of the process.
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.4
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.
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.
- 1 References to the RTI Act include the equivalent section of the Information Privacy Act 2009 (Qld) (IP Act)
- 2 In this Guideline, references to an 'agency' also include Ministers, unless otherwise specified.
- 3 [2020] QICmr 9 (18 February 2020) at paragraphs 11-15
- 4 This can be an internal review, an external review, or proceedings at the Queensland Civil and Administrative Tribunal.
Current as at: May 20, 2020
