This guideline explains how post-application documents are dealt with under the Right to Information Act 2009 (Qld) (RTI Act) or the Information Privacy Act 2009 (Qld) (IP Act). Agencies1 can give access to a document created after an application is received but these documents will not be subject to that RTI or IP Application2.
What is a post-application document?
An application for access to documents under RTI and IP Acts only applies to documents that already exist on the day a valid application is received3.
A post-application document is a document that did not exist, or was not in the possession or under the control of the agency4 on the day the agency received a valid access application and which has been created or received by the agency after that date.
An agency receives an access application from John Smith on 1 March for correspondence about staff training expenditure. The application is not accompanied by the application fee so the agency contacts Mr Smith on 3 March to inform him that he must pay the application fee before they can process his application. Mr Smith pays on 6 March.
Only documents within the scope of the application that were in the possession or under the control of the agency on 6 March would need to be considered in response to Mr Smith’s application. Any relevant correspondence received or created after that date would be considered a post-application document.
For more information about ‘what is a document’, please refer to the Guideline: Documents of an agency and documents of a Minister5 and the OIC Annotated Legislation: Meaning of document of an agency.6
How do the RTI and IP Acts apply to post-application documents?
The RTI Act and IP Act allow, but do not require or compel agencies to give access to post-application documents. It is at the agency’s discretion to give access to a document created after the access application is received7 and as such, there are no set requirements for how the agency deals with the post-application document.
Documents that are not post-application documents
The RTI Act prescribes a number of specific documents which are not considered to be post-application documents. These are set out below.
Transcripts of sound or code
If an agency receives a request for access to a sound recording or a document that contains words written in shorthand or code, it can give access by providing a written transcript of the words recorded or contained in the document8.
Although the agency will produce the written transcript after it receives the access application, this will not be a post-application document as the information was in existence on the date the valid application was received. By providing a written transcript, the agency is facilitating access to the information, not creating a new document.
It is important to remember that if you are providing a written transcript of a document in accordance with section 68(1)(d) of the RTI Act9, the transcript must be identical to the words that were recorded or contained in that document.
If the transcript is not a true copy but is instead an edited version of those words then it is likely to be a post-application document as the edited version does not represent the information that was in existence at the time the application was received. The actual document must also then be considered by the agency in deciding whether to give access to documents within the scope of the application.
Data reproduced from an available system
A document that can be produced from information held in an electronic system that exists in the agency at the time the application is received is not a post-application document. An agency may reproduce the data from an available system and give access to it in response to an application, provided that:
- the information applied for is not contained in a written document held by the agency (e.g. if it is only stored electronically); and
- the agency is able to create a written document containing the information using equipment that is usually available to it for retrieving or collating stored information.10
If producing the document from the electronic system would require the agency to obtain or re-program additional equipment, or create specific software11, the agency is not required to do so.12
Agency Z holds records of all recreational parks in its ParkInfo database. An authorised officer using the database can generate various reports containing recreational park information. The agency receives a valid access application on 14 February 2014 requesting a report on the expenses of maintaining all recreational parks for the period 6 April 2010 to 11 May 2013.
In response to the application, the agency generates a report from its ParkInfo database for the expenses of maintaining all recreational parks for the period specified. This report is not a post-application document because the information already existed at the time the valid application was received and was stored on the ParkInfo database.
However, if the agency creates a new document by manually collating some or all of the information contained in the report for 6 April 2010 to 11 May 2013 as well as records created after the application date up to the day the report is generated, this would be a post-application document. This is because this document as a whole did not exist before the application date - only some parts of the new document existed ie. the report on the expenses of maintaining all recreational parks for the period of 6 April 2010 to 11 May 2013.
Creating post-application documents in response to an application
An agency can create a post-application document but it must first consider all documents that fall within the terms of the access application, which are in existence on the date the application was received13, before creating a post-application document. That is to say, an agency must not create a post-application document instead of considering already existing documents which fall within the scope of the application, unless it does so with the consent of the applicant.
Giving applicants access to post-applications can be an excellent way of meeting the applicant's need, but it cannot be done unilaterally. Where an agency believes that an applicant's scope could be satisfied by a post-application document, for example where they have asked questions which could be answered or are seeking statistical data that may not exist but could be readily compiled, an agency may wish to contact the applicant to discuss their option.
Communicating with the applicant is not only good client service, but will also enable the agency to determine whether the applicant would be interested in receiving post-application documents, either in addition to or instead of the scope of their application. This approach is consistent with the RTI Act, under which government is expected to give the community greater access to information, preferably proactively or administratively releasing information.
Where an application seeks answers to questions
Although the RTI Act does not provide individuals with a right to have questions answered14, it does not prevent an agency from providing answers to questions or extracting answers from documents in its possession, if they are prepared to do so in the interests of assisting a member of the public.
Where the terms of the application are expressed as seeking answers to questions, rather than access to documents, the agency may interpret this as a request for documents or information contained in a document that would assist in answering the question.15
Where this approach is taken, the decision maker should:
- contact the applicant and see if they would be satisfied with access to post-application documents, either in addition to or in place of their RTI application
- if they are satisfied with being given post-application documents only, discuss with them the possibility of withdrawing their RTI application
- make it clear to the applicant that there is no charge for post-application documents but that there are also no review rights; and
- make a file note of the conversation with the applicant and/or confirm the conversation in writing.
Dealing with access applications and post-application documents
There may be situations where an access application will trigger the production of post-application documents and the decision-maker may need to deal with the access application and the post-application documents simultaneously.
The considerations set out below should be noted when dealing with post-application documents.
Third party consultation
There is no requirement under the RTI Act to consult with a relevant third party if the agency decides to give access to a post-application document. The agency should have regard to its administrative release policies when considering whether to consult with a third party about a post-application document. Generally, if there is a need to consult with a third party, the document should be dealt with a part of the standard RTI application process.
Applicants only have review rights in relation to the documents that are responsive to the terms of the access application; there are no rights of review in relation to a post-application document.16 Agencies should be clear about this if considering giving access to a post-application document.
Fees and charges
Under the RTI Act, a charges estimate notice (CEN) must be issued to the applicant before the end of the processing period, whether or not processing or access charges are payable.17
If the only documents responsive to the application are post-application documents, the decision maker should contact the applicant to advise this. If the agency gives access to the post-application documents, there will be no processing and/or access charges payable.18
If the agency identifies post-application documents in addition to existing documents, processing and/or access charges are only payable on the documents in existence on the date the valid application was received.
- 1 In this Guideline, references to an 'agency' also include Ministers, unless otherwise specified.
- 2 See section 27(3) of the RTI Act and sections below regarding ‘Fees and charges’ and ‘Review rights’.
- 3 See section 27 of the RTI Act and section 47 of the IP Act. Any references made to section 27 of the RTI Act also include section 47 of the IP Act, unless otherwise specified.
- 4 See section 12 of the RTI Act for definition of ‘document of an agency’.
- 5 See Guideline – Documents of an agency and documents of a minister available at: www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/receiving-and-assessing-applications/documents-of-an-agency-and-documents-of-a-minister
- 6 See OIC’s Annotated Legislation available at: www.oic.qld.gov.au/annotated-legislation/right-to-information/chapter-1-preliminary-1-18/part-2-interpretation-10-18/12-meaning-of-document-of-an-agency
- 7 Section 27(2) of the RTI Act and section 47(2) of the IP Act.
- 8 Section 68(1)(d) of the RTI Act and section 83(1)(d) of the IP Act.
- 9 Section 68(1)(d) of the RTI Act and section 83(1)(d) of the IP Act.
- 10 Section 68(1)(e) of the RTI Act and section 83(1)(e) of the IP Act.
- 11 Pearce and Rural Adjustment Authority: Various Landholders (Third Parties) (1999) 5 QAR 242 at 9.
- 12 Note that is an entirely different situation from the processing of application for digital video recordings, where the agency has an obligation to obtain software in order to redact the recordings for the purpose of giving access, or otherwise find a means of giving access, such as outsourcing the redaction process. See Managing Access to Digital Video Recordings for more information.
- 13 Section 45 of the RTI Act and section 65 of the IP Act.
- 14 See Hearl v Mulgrave Shire Council (1994) 1 QAR 557 (Hearl) at 30. However, the RTI Act does not prevent an agency from providing answers to questions or extracting answers from documents in its possession, if the agency is prepared to do so in the interests of assisting a member of the public.
- 15 Hearl at 32.
- 16 Section 27(3)(b) of the RTI Act and section 47(3)(b) of the IP Act.
- 17 Section 35 (1)(b) RTI Act.
18 Section 27(3)(a) of the RTI Act and section 47 of the IP Act.
Current as at: June 27, 2016