Both the Information Privacy Act 2009 (Qld) (IP Act) and the Right to Information Act 2009 (Qld) (RTI Act) create a right of access to documents, subject to certain exclusions and exceptions. Applications for an applicant’s personal information are generally to be processed under the IP Act; other applications are generally processed under the RTI Act.
This guideline is intended to assist decision makers who process access applications. It provides a general overview of the steps which must be followed; specific guidelines which provide more information are noted throughout.
Who can make decisions?
For applications to an agency, only the agency’s principal officer or their delegate can make decisions on an access application. For applications to a Minister, only the Minister or a person directed by the Minister can make a decision on an access application.
More information can be found in the Guidelines: Who can make decisions under the RTI Act and the IP Act and Healthcare decisions.
Who can apply?
Anyone can apply for any documents under the RTI Act; any individual can apply for documents containing their personal information under the IP Act. An applicant can also authorise an agent, for example a lawyer, family member, or friend, to act on their behalf in making the application.
In addition, both the RTI and IP Acts specifically provide for access applications to be made by parents on behalf of their children. Decision makers should consult the Guideline: Applications by and for children for more information.
What can an applicant apply for?
An applicant can only apply to access documents in the possession or control of an agency, not for information or for answers to questions. There is no requirement that an applicant provide reasons for their application, however an applicant’s reasons may be relevant when considering the public interest factors.
The application can only apply to documents that existed at the time the application was received or was made valid and applications will generally not apply to metadata or to agency backup systems.
Decision makers should consult the following Guidelines:
- Documents of an agency and documents of a Minister
- What is the right of access in the RTI Act
- Searching for documents.
Who can an applicant apply to?
Access applications under the RTI and IP Act can only be made to agencies and Ministers. A Minister includes an Assistant Minister; an agency includes a department, local government, and public authority, but does not include an entity to which the Acts do not apply.
Decision makers should consult the Guideline: What is an agency? for more information.
The RTI Act or the IP Act?
Both the RTI Act and the IP Act allow people to apply for access to documents and the procedures for providing access are consistent between the two Acts. A comparison table of RTI and IP provisions is contained in Appendix One.
Under the IP Act an individual has a right to be given access only to documents that contain the individual’s personal information. There is no limitation on the documents that may be applied for under the RTI Act. Both Acts refer to each other and there are processes for transferring applications made under one Act if they should have been made under the other Act. Decision makers should consult the Guideline: Which Act to determine if an application has been made under the correct Act.
The RTI and IP Act set out steps decision makers must follow for:
- IP Act applications that should have been made under the RTI Act
- RTI Act applications that could have been made under the IP Act.
Requirements of a valid application
In order for an access application to be valid it must comply with the requirements set out in section 24 of the RTI Act or section 43 of the IP Act. An access application must:
- be in the approved form (see www.rti.qld.gov.au for a copy of the approved form)
- be accompanied by the application fee1
- if an agent is acting for an applicant seeking personal information, include evidence of the agent’s authority
- give sufficient information concerning the document to enable an officer of the agency to identify it
- state an address to which notices may be sent2.
For RTI applications only, the applicant must state whether or not they are accessing the documents to benefit another entity (the beneficiary) and, if they are, identify the beneficiary.
There are steps that must be followed when a noncompliant application is received. Decision makers should consult the Guidelines: Evidence of authority and identity and Noncompliant applications for more information.
An applicant seeking access to a document containing their personal information, regardless of the Act under which they are applying, must provide certified evidence of identity with the application or within 10 business days after making the application. If an agent is acting for the applicant the agent is also required to supply a certified copy of their ID.
Decision makers should consult the Guideline: Evidence of authority and identity for more information.
In some circumstances an agency will receive a valid application that they will need to transfer to another agency. The application can be transferred to the other agency if:
the document to which the application relates is not held by the original agency but the original agency knows it is held by another agency, and
the other agency consents.
As a matter of policy, agencies should only decline to accept transfers in extraordinary circumstances, for example, where an attempt to transfer the application is made near the end of the processing period.
If an application is transferred under section 38 of the RTI Act or section 57 of the IP Act, it is taken to have been made to the agency to which it was transferred.
As a matter of good practice the original agency should give a written notice to the applicant, advising:
- that the application has been transferred
- to which agency or agencies it has been transferred
- the date on which it was transferred.
For more information, consult the Guideline: Transferring access applications.
Refusal to Deal
In some circumstances an agency can refuse to deal with an application. These include where:
- the applicant has previously applied under the IP Act or RTI Act for the same documents and gives no reasonable basis for applying again
- dealing with the application would substantially and unreasonably divert the agency’s resources or functions.
An agency can also refuse to deal with an application where the application is ‘expressed to relate to all documents of a stated class that contain information of a stated kind or relate to a stated subject matter’ and the view of the agency or Minister is that all of the documents sought contain exempt information. For example, a decision maker could refuse to deal with an application for ‘all Cabinet submissions for August 2009’.
It is not necessary for the agency or Minister to identify all or any of the documents but it must be apparent from the terms of the application that all documents would be exempt.
For more information, consult the Refusal to deal guidelines.
Neither confirm nor deny
Agencies may ‘neither confirm nor deny’ the existence of certain documents where acknowledging the existence of the documents could cause a detriment even if access is denied.
For example, the applicant applies for ‘documents about the information Bob Smith gave to the police that resulted in my arrest’. Refusing access to the documents would confirm that Bob Smith was the confidential source who gave information to the police so an agency can respond to the application by neither confirming nor denying the existence of those documents.
Decision makers should consult the Neither confirm nor deny guidelines for more information.
Timeframes for processing applications
Generally, an agency or a Minister has 25 business days in which to make a decision on an application. This is called the processing period. The 25 business day processing period begins on the day after a valid application is received, or a noncompliant application is made valid.
Certain periods are not counted when determining the processing period, including:
- if the application is transferred to the agency or Minister—the transfer period
- if the application involves consultation with a relevant third party—10 business days.
The transfer period is defined as being the lesser of:
- the period starting on the day a valid application is received by the agency or Minister who transfers the application and ending on the day the application is transferred
- 10 business days.
At any time before the processing period ends the agency can ask the applicant for more time to deal with the application. This is called a further specified period and it should always be requested as business days, rather than as an extension to a specific date. The further specified period does not count as part of the processing period.
If a decision is not made within the time allowed by the Acts the agency is deemed to have refused access to the documents. This is called a deemed decision and can only be reviewed by the Information Commissioner on external review.
Decision makers should consult the Guideline: How to Calculate Timeframes for more information.
Charging for access applications
For access applications made under the RTI Act, there:
- is an application fee that cannot be waived
- may be a processing charge
- may be an access charge.
If the applicant is in financial hardship they can apply to have the processing and access charges waived.
For IP applications there is no application fee or processing charge, but there may be an access charge.
Decision makers should consult the Guideline: Fees and charges for more information.
RTI applications: Charges estimate notices and schedule of relevant documents
For RTI Act applications only, the decision maker must give the applicant a charges estimate notice and a schedule of relevant documents before the end of the processing period. They do not have to be sent at the same time but doing so is good administrative practice.
The charges estimate notice should estimate the processing and access charges payable by the applicant. The applicant can either accept the charges, narrow the scope of their application to reduce the charges, or withdraw their application. If they narrow their application, the decision maker must give them a second charges estimate notice, which they can either accept or withdraw their application.
The final amount payable by the applicant may be less, but cannot be more, than the amount of the charges estimate notice accepted by the applicant.
For more information decision makers should consult the Guideline: Fees and charges and Schedule of relevant documents and charges estimate notice.
Consultation with third parties
If a decision maker intends to give access to a document which contains information that could reasonably be expected to be of concern to a third party, they must consult with that third party. There is no need to consult where the decision maker has already formed the view that the document will not be released.
Consulted third parties have the same review rights as an applicant, and the decision maker gains an extra ten days in which to give the applicant a decision notice.
Decision makers should consult the Guideline: Consulting with a relevant third party for more information.
Refusing access to documents
Section 47 of the RTI Act sets out the grounds on which access to documents can be refused in response to both an RTI Act and an IP Act application. These include where the documents are comprised of:
- exempt information
- contrary to the public interest information
- information contrary to a child’s best interests.
It also provides that access may be refused where the documents are non-existent or unlocatable or access is available through other means.
For more information decision makers should consult the following Guidelines:
- Exempt information guidelines
- Public interest balancing test
- Decision making guidelines
- Deletion of irrelevant information
Notification of decision and reasons
There are specific requirements for prescribed written notices for decisions made under the RTI and IP Acts. Prescribed written notices must contain:
- the decision
- the reasons for the decision
- the day the decision was made
- the name and designation of the person making the decision
- any rights of review under the Act
- the procedures for exercising those rights; and
- the time within which an application for review must be made.
Decision makers should consult the Guideline: Decision writing and statements of reasons for guidance on additional requirements for specific decisions made under the RTI and IP Acts.
Giving access to documents
For guidance on providing access to documents after a decision to grant access is made, decision makers should consult the Guideline: Providing access to documents.
For guidance on providing access to documents via the disclosure log after an access application made under the RTI Act, decision makers should consult the relevant disclosure log guideline.
- 1 Only for access applications under the RTI Act.
- 2 This is not restricted to a physical address; an email address is sufficient.
Current as at: October 6, 2015