The Right to Information Act 2009 (Qld) ( RTI Act ) and the Right to Information Regulation 2009 (Qld) ( RTI Regulation ) contain specific provisions relating to the application fee, processing charges and access charges for an application made under the RTI Act.
The Information Privacy Act 2009 (Qld) ( IP Act ) and the Information Privacy Regulation 2009 (Qld) ( IP Regulation ) only contain provisions relating to access charges for an application made under the chapter 3 of the IP Act.
In summary, the differences between the fees and charges under the two Acts are that:
The application fee is prescribed under the RTI Regulation.
An application made under the RTI Act must be accompanied by payment of the application fee in order for the application to be valid. 4 There is no application fee payable for applications under the IP Act.
If an RTI application does not include the application fee then the agency must contact the applicant within 15 business days and give the applicant a reasonable opportunity to consult and make their application compliant by paying the application fee. 5
If the application fee is not paid after the applicant has had a reasonable opportunity to consult with a view to making their application compliant (or the application still does not comply in other ways), the agency must give the applicant prescribed written notice of the decision that the application does not comply. This is a reviewable decision. 6
Under section 38 of the RTI Act, a separate application fee is payable if part of an application is transferred to another agency and the transferred part of the application relates to a document which is not the applicant’s personal information. Applicants should be advised of the part transfer in such circumstances.
No. Section 24(2) of the RTI Act states that the application fee may not be waived. Even if the applicant is eligible for a waiver of the processing and access charges on the grounds of financial hardship, there are no provisions in the RTI Act which allow for the application fee to be waived in any circumstances.
Remember there is no application fee for IP Act applications.
Under section 46(1)(b) of the RTI Act, an application fee must be refunded to the applicant if there is a deemed decision on their application, ie if the applicant is not given written notice of the decision by the last day of the processing period. The application fee does not have to be refunded if the deemed decision is replaced by a considered decision made during the further specified period under section 35(4) of the RTI Act.
For more guidance on the processing period, longer processing period and deemed decisions see the Guideline: How to Calculate Timeframes.
Under section 34 of the RTI Act, if an application made under the RTI Act is limited to seeking access to a document or documents that contain the applicant’s personal information, the agency must inform the applicant that their application could have been made under the IP Act. If the applicant asks for their application to be dealt with under the IP Act, any application fee paid must be refunded as soon as practicable. 9
If an applicant has applied for an external review of a deemed decision, and the agency applies to the Information Commissioner for further time to deal with the application, the Information Commissioner may allow the agency further time, subject to conditions the Information Commissioner considers appropriate. These conditions may include that the application fee be refunded. 10
There are no provisions in either the RTI Act or the IP Act that allow agencies to request payment of a ‘deposit’ from the applicant.
There is also no requirement in the RTI Act for applicants to pay for the estimated processing and access charges when confirming the CEN.
The processing charge is a cost calculated based on the time it takes an agency to process an access application under the RTI Act. The processing charge may include costs for the time taken to search and retrieve relevant documents and the decision making process under the RTI Act. 11
There are no processing charges for applications made under the IP Act.
The processing charge (as prescribed under the RTI Regulation) is:
If an agency spends more than 5 hours processing an application, the processing charge applies to the entire processing time, including the first 5 hours. So if the agency takes six hours to process the application, there is no ‘free’ five hour period. 13
The RTI Act also provides that no processing charge is payable in relation to a document that contains any personal information of the applicant. 14 This means that agencies should exclude from their calculations the time they spend processing documents which contain the applicant’s personal information. There is no similar provision in relation to access charges so agencies should include all documents when calculating any access charges (see below at 6.0 for details regarding access charges).
It is important to remember that agencies have a duty to minimise any processing or access charges payable by an applicant. 15
If an agency spends additional time trying to find and retrieve a document that is not where the agency’s filing system indicates it should be located, the agency must absorb the time spent searching and cannot include this additional time when calculating the processing charges. 16
This means that if an agency spends an additional two hours locating a document that was incorrectly filed, those additional two hours cannot be counted when calculating the processing time for the application.
An access charge is the cost of giving the applicant access to a document 17 , for example it may include the cost of photocopies.
The access charge for a document is the actual cost incurred by the agency for:
If an applicant is given access to a document on a A4-size black and white photocopy, the cost is $0.25 for each page.20 This is the only access charge cost specifically provided for in the RTI Regulation and IP Regulation.
There is no cost for providing access to a document in electronic form, such as by email or on a disc. This is because these costs are specifically excluded from the access charge in both the RTI Regulation and the IP Regulation. 21
Access charges may be payable for applications made under both the RTI Act and IP Act, regardless of whether or not the documents contain the applicant’s personal information. This means that agencies should calculate the access charges payable by the applicant based on all relevant documents.
In some circumstances, the applicable processing and/or access charges can be waived. 22
If an agency considers that the associated costs of receiving payment of the applicable processing and/or access charges are more than the amount that would be incurred by the agency in processing that payment, they may waive the charges payable on the grounds that it is uneconomical for the agency to charge the applicant. 23
Under the RTI Act, the ‘associated costs’ are the costs of estimating and otherwise complying with the Act in relation to the charge, and receiving payment of the charge. Under the IP Act, the ‘associated costs’ are defined in the same way, except that the costs do not include estimating the charge.
It is good practice for agencies to develop a policy which outlines the maximum amount that would be considered ‘uneconomical to charge’ to ensure there is a consistent approach within the agency.
Processing and/or access charges for an application must be waived for an individual if:
The concession card must be one of the following:
For further information about the accepted concession cards and waivers on the grounds of financial hardship for an individual see the Guideline: Applying for financial hardship as an individual .
For an applicant which is a non-profit organisation, processing and access charges under the RTI Act must be waived where the Information Commissioner has made a decision that the organisation has non-profit status under section 67 of the RTI Act.
For further information about financial hardship waivers for non-profit organisations see the Guideline: Financial hardship status for non-profit organisations .
If an applicant has applied for an external review of a deemed decision and the agency applies to the Information Commissioner for further time to deal with the application, the Information Commissioner may allow the agency further time, subject to conditions the Information Commissioner considers appropriate. These conditions may include that the processing charge and/or access charge be reduced or waived. 27
Although section 93 of the RTI Act does not refer to waiver of access charges, the use of the word ‘including’ in section 93(2) would allow for such a waiver if the Information Commissioner decides it is appropriate.
Agencies may make most of the determinations in relation to waiving the applicable processing and/or access charges, including:
However, only the Information Commissioner can:
There is no equivalent provision in the IP Act.
A charges estimate notice (CEN) is a written estimate of how much the processing of an access application is likely to cost, including any access charges.
Under the RTI Act, agencies must give a CEN to an applicant before the end of the processing period and it must be issued regardless of whether or not charges are payable. 33 If there are no charges payable, for example if it is uneconomical to charge, then the CEN could form part of the decision notice.
There is no requirement to provide a CEN under the IP Act.
In order to issue a CEN, the agency must:
For more detailed information about CENs, see the Guideline: Schedule of relevant documents and charges estimate notice.
The RTI Act states that the amount payable for any processing and/or access charges may not be more than the estimated charges set out in the final CEN. 35 So while the amount of charges payable by an applicant before they are given access to documents may be less than the amount in the final CEN, it cannot be more than the final estimate.
It is important to remember a CEN must (as discussed at point 3.1) inform the applicant of their review rights on the decision that processing and/or access are payable, including how to apply for a review and the timeframe for making a review application. 38
Agencies may want to give applicants a copy of the Information Sheet: Explaining your Review Rights.
There is no requirement in the RTI Act for applicants to pay for the estimated processing and access charges when confirming the CEN.
1 Section 59 of the RTI Act.
2 In this Guideline references to an ‘agency’ include Ministers, unless otherwise specified.
3 Section 58 of the RTI Act and section 78 of the IP Act.
4 Section 24(2) of the RTI Act.
5 Section 33 of the RTI Act.
6 See the OIC Guideline Noncompliant applications for more information .
7 Section 4 of the RTI Regulation.
8 Section 35 of the RTI Act.
9 Section 34(3) of the RTI Act.
10 Section 93 of the RTI Act and section 106 of the IP Act.
11 Section 56 of the RTI Act.
12 Section 5 of the RTI Regulation.
13 As per the example in section 5 of the RTI Regulation.
14 Section 59 of the RTI Act.
15 Section 58 of the RTI Act.
16 Section 5(2) of the RTI Regulation.
17 Section 57 of the RTI Act and section 78 of the IP Act.
18 Section 6(1)(a)(iii) of the RTI Regulation and section 68(1)(d) of the RTI Act.
19 Section 6(1)(a)(iv) of the RTI Regulation and section 68(1)(e) of the RTI Act.
20 Section 4(1)(b) of the IP Regulation and section 6(1)(b) of the RTI Regulation
21 Section 6(2) of the RTI Regulation and section 4(2) of the IP Regulation.
22 As outlined in chapter 3, part 6, division 3 of both the RTI Act and the IP Act.
23 Section 64 of the RTI Act and section 81 of the IP Act.
24 Section 66(2)(a) of the RTI Act and section 82(2) of the IP Act.
25 Section 66(5) of the RTI Act and 82(4) of the IP Act.
26 Section 66(5) of the RTI Act and 82(4) of the IP Act.
27 Section 93 of the RTI Act and section 106 of the IP Act.
28 Section 64 of the RTI Act and section 81 of the IP Act.
29 Section 66(2)(a) of the RTI Act and section 82(2) of the IP Act.
30 Section 67 of the RTI Act.
31 Section 93(2) of the RTI Act and section 106 of the IP Act.
32 Section 62 of the RTI Act.
33 Section 36(1) of the RTI Act.
34 Section 54(2) of the RTI Act and section 68(2) of the IP Act.
35 Section 61 of the RTI Act.
36 Section 81 and section 86 of the RTI Act.
37 See definition of ‘reviewable decision’ under Schedule 6 of the RTI Act.
38 Section 36(7)(g) of the RTI Act.
39 Section 60(1) of the RTI Act and section 79 of the IP Act.
40 Section 60(2) of the RTI Act.
Current as at: June 30, 2017