Consulting with a relevant third party

Overview

If an agency is considering the release of a document which contains information that may be of concern to a third party the agency must obtain the views of the third party before making a decision.  This is done by way of formal consultation.

This Guideline explains the process for consultation under the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act).

When must an agency consult?

Under section 37 of the RTI Act1, an agency2 must take the steps that are ‘reasonably practicable’ to consult where:

  • the agency is considering release of a document; and
  • the release of the information contained in the document could reasonably be expected to be of concern to a government, agency or person.

An agency is not consulting on any other ground, for example whether or not information is outside an application's scope or irrelevant.3

An agency cannot give access to a document that contains information which, if disclosed, may reasonably be expected to be of concern to a third party unless the agency has consulted with the third party in accordance with this section

Note

There is no need to consult where you have already formed a clear view that the document will not be released, either because it is exempt information, its disclosure would be contrary to the public interest, or it is excluded from the Act’s operation.

For more information about the relevant considerations to take into account when deciding whether to consult with a third party, please refer to the OIC Annotated legislation for section 37 of the RTI Act.

Privacy principles and disclosing the identity of the applicant to the consulted third party

If the applicant is an individual, the privacy principles4 will apply to the third party consultation.  Under these principles, disclosure of the applicant's identity to the consulted third party will generally not be permitted, unless one of the exceptions to the non-disclosure rule applies – for example, the agency has sought the individual’s consent and they have agreed to the disclosure of their identity or disclosure is authorised or required by law5.

Example

If an agency has to consult with another agency in relation to Crime and Corruption Commission investigation documents, the identity of the applicant will generally be a necessary part of the consultation, as the application of the relevant exempt information provision turns on whether or not the applicant was the investigated party.

Refer to the Crime and Corruption Commission guideline for more information.

If the applicant objects to their name being given to the consulted third party then the decision maker will have to carefully consider whether it is necessary to disclose the applicant's identity in order to properly consult with the third party.

In some cases, it may be possible to provide some contextual information to assist the third party to consider whether they object to disclosure of the information, without revealing the applicant’s identity.

Example

Where the applicant is part of a class of people (such as a local resident) and revealing the class would not identify them, or their identity could not reasonably be ascertained by the third party, you may decide to reveal only that classification in order to provide the third party with additional context for the request.

If the applicant is not an individual (for example, the applicant is a company) the privacy principles do not need to be considered (unless the company information is also personal information because it is linked to an individual or identifies an individual).  This is because only an individual can have personal information6.

The consultation process

It is good practice to contact the third party, to explain the process and answer any questions they may have, before sending any consultation correspondence.

When writing to the third party to seek their views, the consultation letter should include the following:

  • details of the provisions of the RTI Act or IP Act relating to consultation
  • a brief explanation of the consultation process
  • a copy of the material which is the subject of the consultation
  • a copy or details of the RTI provisions for exempt information and the public interest test factors or the relevant provision relating to documents to which the Act does not apply (except where consulting with another agency)
  • an explanation of the provisions of the RTI Act dealing with disclosure logs7
  • the decision maker’s contact details in case the third party has any queries; and
  • a date or timeframe for when the third party should provide a response to the consultation.

Agencies may also wish to include a copy of OIC's Information Sheet: What does it mean is you are consulted as a third party?

If possible, the third party should provide a written response setting out their views.  All correspondence to and from the consulted third party, file notes and a copy of the consulted material (or, if it is too voluminous, a schedule describing the documents consulted on) should be attached to the processing file.

Consulting with companies and businesses

The process for consulting with a company or business should generally follow the same procedure for consulting with a private individual, as set out above.

Consultation with government

Consultations with other agencies, Ministers, or governments in other jurisdictions should, where possible, be made through the head of the RTI unit (or equivalent) of that government entity. 
Consulting with other business units within your own agency about the access application is not considered to be a formal consultation under section 37.8

Consulting in relation to CCTV footage

Consultation in relation to closed circuit television (CCTV) footage raises particular issues as it may be difficult to identify individuals who appear in the footage.  Depending on the location of the camera the footage will often contain images of a large number of individuals.

If there is no way of determining the identity of an individual, or the footage shows many individuals whose personal details cannot be obtained, there are obvious limitations on the ‘reasonably practicable’ steps an agency can take to consult.9

If it is not possible to provide the CCTV footage to the third party due to privacy or other concerns, you may be able to instead provide the third party with an overview of the footage, for example, details of the date, time and location of the images.

Consulting in relation to deceased persons

The concept of personal information10 only applies to living persons.  However, there may be documents which contain personal information about a deceased person which was their personal information when they were alive.

Where documents contain such information, the decision maker must consider whether it is necessary to consult with members of the deceased person’s family.  If disclosure of information may reasonably be expected to be of concern to a person but for the fact that the person is deceased, the requirement to consult applies as if the person’s representative11 was a relevant third party.12

Consulting where documents concern a child

When preparing for and conducting consultations involving children consider the following:

  • the age of the child and their capacity to understand the consultation
  • the ability of the child to make a ‘mature judgement’ in relation to the consultation
  • guardianship and custody issues
  • whether it is appropriate for the consultation to be undertaken through an independent third party (such as a health care professional); and
  • the presence of a parent or guardian during the consultation process.

For more information, please refer to the OIC Guideline: Applications by and for children13.

Consulting with adults with impaired capacity

Similar issues to consulting with children arise in relation to adults with impaired capacity.  The decision maker should consider whether it is appropriate to consult directly with the individual or whether the consultation should be with a guardian who has legal authority to act on that person’s behalf, if such a person has been appointed.

Consultation with a former Minister

If you are considering disclosing a document of a former Minister and, due to the particular circumstances of the matter, you consider that disclosure may reasonably be expected to be of concern to the former Minister, you will need to consult the former Minister.

Remember, you are considering whether disclosure would currently be of concern. This means that you consider that the former Minister would be concerned by the disclosure at the time of your consultation, not when the documents were created or received.  The sensitivity of a document can change over time and be superseded by events and later publication of related material.

The Queensland Parliamentary Service may be able to facilitate third party consultation with the former Minister.14 If the former Minister is still an elected member, you may choose to contact them through their electorate office.

Remember

Consultation is only required if you are considering disclosing information. You do not need to consult a third party if you have formed the view that access to the information may be refused under the RTI Act.

Consultation and the processing period

The applicant should be advised as soon as possible that the processing period is effectively extended by a total of 10 business days15 for all required consultation.

Informing the applicant of this may help to manage their expectations and limit the possibility that they might seek a review of what they believe to be a ‘deemed decision’ when, in fact, the agency is still processing their application within the processing period.

Note

Internal consultation with a business unit within your own agency is not consulting with a relevant third party so it does not affect the processing period.

For further information about the processing period and calculating timeframes see the Guideline: Timeframes for access and amendment.

Timeframe for third party to respond

When consulting with a third party, the decision maker should provide them with a reasonable opportunity to provide a response to the consultation.

Although the legislation effectively provides for an additional 10 business days to the processing period for consultation with a relevant third party, this does not automatically mean third parties are given 10 business days to respond.

In determining how long a relevant third party should be given to respond to the consultation, the following considerations should be taken into account:

  • how long it will take for the consultation correspondence to be received by the third party
  • the number of documents being consulted upon and their complexity
  • how long it may take for the third party to send any written response back to the agency; and
  • any accessibility concerns of the third party.

Depending on the amount of processing time remaining before the agency must make an access decision, the agency might need to seek a longer processing period (extension of time) from the applicant to allow the third party to have a reasonable opportunity to respond to the consultation.

Applicant’s access following consultation

Where consultation has been conducted, a relevant third party may:

  • have no objection to the release of documents in question
  • not respond to the consultation, or
  • object to the release of all or part of the document or documents provided for consultation.

The third party’s response should be taken into consideration when making a decision regarding access to the document.  The decision on access and the third party’s response to that decision may impact upon when the applicant can access the document which has been subject to the consultation.

Consultation response where the third party has no objection

If the third party confirms that they do not object to release of the document consulted upon, the decision maker can continue to make a decision regarding access in accordance with the legislation.  If access to the document is granted, the applicant can access the document immediately upon payment of any applicable processing and/or access charges.

Consultation but no response from third party

If the decision maker has been unable to contact the third party or receives no response from them, a decision regarding access to the document must still be made without the benefit of input from the third party.  The decision maker should not automatically decide in favour of release but must make their decision based on the information and facts before them.

Once the decision regarding access has been made, it will not have been a decision made contrary to a view expressed by a consulted third party if all reasonably practicable steps16 were taken by the decision maker to contact and seek the views of the relevant third party.

If the decision maker decides to grant access to the document that was subject to the consultation, and the applicant has been advised of the decision, there is no reason to defer providing access to the document.

Consultation and third party objects to release

If the third party objects to the release of all or part of the document provided for consultation, and the decision maker decides to release the information contrary to the views of the third party, the decision maker must:

  • provide a prescribed written notice of this decision to both the third party and the applicant; and
  • defer giving the applicant access to the relevant document.17

The written notice of the decision should provide reasons for the decision to release the information and detail the review rights of the third party.  The applicant should also be informed that access to those documents is deferred.

The third party will have the right to apply for an internal and/or external review of the decision to release information contrary to their views.18 An application for review must be made within 20 business days (or a further time, if allowed) from the date stated on the decision notice to the third party.

Note

Only access to the document that was subject to the consultation is deferred; the applicant must still be given the decision on those documents.

If the consulted third party objects to the disclosure of the document and the agency does not agree with the third party’s views, the agency must still make a decision regarding access on the document.

If the third party objects to the release of all or part of the information contained in the document provided for consultation, and the agency then makes a decision to refuse access (effectively agreeing with the views of the third party), then there is no legislative requirement to provide the third party with written notice of this decision.  However, it is good practice to inform the third party of the decision to refuse access to the document that was subject to the third party consultation process.

Deferring access to a document subject to third party review

As discussed above, if the third party objects to the release of all or part of the document provided for consultation and the agency decides to release information contrary to the third party’s views, the agency must defer giving the applicant access to the document until the third party has exhausted all of their review rights.

If the third party does not apply for review within the relevant timeframe (i.e. 20 business days from the date of written notice of the decision, or a further time if allowed) access to the document will no longer need to be deferred.

When access to the document is no longer deferred, the agency must give the applicant written notice informing them of this.19 Section 37(4) requires only written notice and not a prescribed written notice. Such a notice would therefore not need to comply with section 191 of the RTI Act so it should be sufficient for the agency to send a letter to the applicant explaining why access is no longer deferred. If any applicable processing and/or access charges have been paid by the applicant (or there were no charges payable), the agency may wish to simply provide access to these documents with the written notice.

Note

  1. There is no need to defer access to other documents that were not subject to the consultation process.  The only documents which must be withheld are those which the third party objected to releasing.
  2. The agency should also keep the original access applicant informed of the status of the deferred access documents and whether the documents are still subject to review.  This can be done informally, either in writing or verbally, with a record placed on the file.

What if the decision to give access is overturned as a result of the third party’s review application?

Internal review

If the third party applies for an internal review of the original decision to release the document provided for consultation (despite the views of the third party) the internal review decision maker must make a new decision on the consultation document as if the original decision on the document had not been made.20

If, on internal review, the decision maker makes a different access decision on the consultation document, they must also provide written notice of their internal review decision to the original access applicant, affording them the right to apply for an external review.  This is because the original access applicant is a person affected by a reviewable decision21.

In some circumstances, a decision maker may be required to consult with a relevant third party while processing an internal review application.  This may be for a number of reasons, including:

  • the result of sufficiency of search issues where additional documents relevant to the application have been located
  • where the internal review decision maker has decided to vary the original access decision to release a document, which may be of concern to a third party.

There are no provisions in the RTI Act or IP Act that allow additional time to decide an internal review application under any circumstances.  The agency must decide an internal review application within 20 business days22.

For further information about internal reviews, and protections and offences under the RTI Act and IP Act see the Guideline: How to Conduct an Internal Review.

External review

If the third party has applied for an external review of the decision to release the document provided for consultation, the agency that made the access decision and the third party (who is then considered the applicant for the external review process) will be participants in the external review.23

The Information Commissioner may allow a person affected by the decision (such as the original access applicant) to participate in the review.24

If a third party’s external review application is finalised by a formal decision by the Information Commissioner, the third party may have limited rights to appeal to the Queensland Civil and Administrative Tribunal (QCAT) or seek a review of the decision by the Supreme Court of Queensland.

How does the third party’s decision to seek review affect the applicant?

Where a decision-maker decides that information should be released to an access applicant contrary to the views of a relevant third party, section 37(3)(c) of the RTI Act requires that the agency give a prescribed written notice of that decision to both the applicant and the third party. The agency’s prescribed written notice must comply with the requirements of section 191 of the RTI Act. In addition, the agency should advise that access to the documents which were subject to the consultation will be deferred.

Both the applicant and the third party have 20 business days from the date stated on the prescribed written notice in which to make an application for review under the RTI Act. This includes those documents to which access has been deferred, as well as the documents which were not subject to the consultation. There is no further review period for the documents to which access has been deferred – the 20 business day time period for seeking a review starts from the date of the prescribed written notice under section 37(3)(c).

Because the applicant has not had access to the consulted documents, they are not aware of the specific information contained in them or whether the agency’s decision to grant access will be reviewed. For this reason, agencies should provide a decision that is descriptive enough to give the applicant an idea of the nature of the information in issue, to the extent possible without revealing the information itself, given access may be refused on review. This should assist the applicant to make an informed decision about whether they wish to exercise their review rights.

  • 1 Section 56 of the IP Act mirrors section 37 of the RTI Act.
  • 2 In this Guideline references to an ‘agency’ include Ministers, unless otherwise specified.
  • 3 6ZJ3HG and Department of Environment and Heritage Protection; OY76VY (Third Party) [2016] QICmr 8 (24 February 2016)
  • 4 See chapter 2 of the IP Act.
  • 5 While section 37 of the RTI Act does not authorise or require disclosure of the applicant's identity as a matter of course, it may be authorised or required by law, and therefore permissible under the privacy principles.
  • 6 See section 12 of the IP Act and the Guideline: What is personal information?
  • 7 See section 37(1)(b) of the RTI Act.  It is not a requirement of section 56 of the IP Act
  • 8 Please note that specific protocols apply to consultation with governments outside Australia. All approaches to be made through the Department of Foreign Affairs and Trade or the Department of Prime Minister and Cabinet.
  • 9 See above
  • 10 See section 12 of the IP Act and the Guideline: What is personal information?
  • 11 See section 37(5) of the RTI Act and section 56(5) of the IP Act for a definition of ‘representative’.
  • 12 See section 37(2) of the RTI Act and section 56(2) of the IP Act.
  • 13 Although this guideline does not address consultation directly, some of the key considerations may be relevant with regards to consulting where documents concern a child.
  • 14 www.parliament.qld.gov.au/members/former/contacting-former-members
  • 15 See section 18(2)(d) of the RTI Act and 22(2)(c) of the IP Act - these 10 business days do not count as part of the processing period.
  • 16 See above.
  • 17 Section 37(3) of the RTI Act; section 56(5) of the IP Act.
  • 18 See the definition of ‘reviewable decision’ in Schedule 5 of the RTI and IP Acts.
  • 19 Section 37(4) of the RTI Act and section 56(4) of the IP Act.
  • 20 Section 80(2) of the RTI Act and section 94(2) of the IP Act.
  • 21 Section 85 of the RTI Act and section 99 of the IP Act.
  • 22 See section 83 of the RTI Act and section 97 of the IP Act.
  • 23 See section 89(1) of the RTI Act and section 102(1) of the IP Act.
  • 24 See sections 89(2) and (3) of the RTI Act and sections 102(2) and (3) of the IP Act.

Current as at: August 16, 2018