Under the Right to Information Act 2009 (RTI Act)1 people have the right to be given access to documents subject to limitations set out in the RTI Act. These limitations include situations where an agency can refuse to deal with an application.
If every document applied for, or every document in a category of documents applied for2, would be exempt from release under one of the provisions in schedule 3 an agency3 can refuse to deal with the application under section 40 of the RTI Act.4
You are required to have a pro-disclosure bias when making this decision and can decide to process an application even if you would technically be permitted to refuse to deal with it.
There are two factors that determine whether or not you can refuse to deal under section 40: the scope of the application and the extent to which the documents will comprise exempt information.5
You do not need to locate or identify documents before deciding to refuse to deal under section 40. It should be apparent from the terms of the application that the class of documents or type of information applied for would be entirely exempt.
Section 40 applies where the application, or part of the application, relates to all documents containing:
It can also apply where the applicant seeks access to documents:
a) Information of a stated kind: all legal advice received by the agency about closing Rose Rd.
b) Relating to a stated subject matter: all documents containing information about the IT contract with Tamed Lightning Pty Ltd.
c) Stated class of a stated kind: all briefing notes to the Minister.
d) Stated class relating to a stated subject matter: all briefing notes to the Minister about the Tamed Lightning Pty Ltd contract.
The deciding factor in applying section 40 will be the words used by the applicant in describing the subject matter of the documents sought. Deciding whether the scope of the application meets the first requirement of section 40 does not involve examining the documents or identifying exempt information provisions and working backwards.6 The starting point is always what the applicant has written.
If the first consideration is satisfied you then need to decide if the documents would be entirely comprised of exempt information.
In order for section 40 to apply, the contents of the documents applied for must be exempt from release under schedule 3. If the contents would be a combination of exempt information and contrary to the public interest information you cannot refuse to deal under section 40.
In the earlier examples, applications for ‘legal advice about the decision to close Rose Rd’ and ‘all documents containing information about the transport contract with Tamed Lightning Pty Ltd’ satisfy the first requirement of section 40.
Only the first application—for legal advice about the road closure—satisfies the second requirement that all documents would be entirely comprised of exempt information, as legally privileged information is exempt from release7.
While it is common for applications dealt with under section 40 to involve only one exempt information provision it is not a requirement. For the purposes of section 40, information in the documents can be exempt under multiple provisions of schedule 3.8
Identifying and searching for the documents will generally not be required for exempt information provisions that contain no exceptions.
However, where the exemption provision does contain an exception, the agency will generally need to review the information. For example, schedule 3, section 10 lists situations in which information that otherwise falls within the exemption provision will not be exempt. In most circumstances, the agency cannot be satisfied that the information is exempt until they have determined that the exceptions do not apply.9
If you refuse to deal under section 40, you must set out in the prescribed written notice:
Current as at: November 30, 2021