RTI and documents available through Court processes

Overview

Under the Right to Information Act 2009 (RTI Act), people have the legal right to access documents held by Queensland government agencies.

While applying does not mean you will receive every document, people have the right to apply. While the applicant may also be able to access information through a court process, it is important to remember that access of that kind does not remove the right to apply under RTI.

Access through the Courts

People who are involved in a Court process—whether it is a civil matter, a criminal matter or a review of a government decision—will have the opportunity to access information, including information held by government, through Court processes such as subpoenas, the discovery process or by inspecting the court file.

Refusal of access because document is available through other means

Section 53 of the RTI Act allows an agency to refuse access if the applicant can reasonably access the documents under another Act or another arrangement made by an agency.  Generally, an applicant being involved in a Court process which may allow them to acquire information will not be sufficient to trigger section 53. Access under a court process is subject to its own rules and generally requires the approval or authority of a judicial officer. RTI applications also often seek documents additional to those available through a court process.

When can an agency refuse access?

An agency can only refuse access to a document on the basis that full access is available under the alternative access option [1] ; in some cases the court process will only allow access to parts of the document, for example sensitive information relating to a victim in a sexual assault case may be removed.

What a person is able to access through a court process will depend on the circumstances of the proceeding and the applicant’s role in it. For this reason, it is not possible to have a policy in place that states all requests made by an applicant involved in a court process may be refused.

Even if the court process would allow access to the complete document, an agency is not required to refuse access under section 53 as the power to refuse access in section 53 is discretionary. An agency can choose to provide access to such documents under the RTI Act or IP Act, subject to other relevant exceptions and limitations.

A person involved in a Court process who is seeking access to documents under the RTI Act has the same rights as any other person to apply for documents, receive a decision about access and exercise review rights under the legislation. Such applications should be dealt with in the same way as any other application. An agency must not refuse to process an application because it relates to documents that may be available through a court process.

What if other options are available?

The agency may wish to contact the applicant to explain there is alternative access available through the court and to set out the different kinds of documents available through the court and RTI access processes.  An agency must clearly advise the applicant that they can pursue their access application as well as the alternative access options.  In some cases an applicant may choose to continue their RTI or IP application while pursuing other access options, particularly where they are unsure whether they will receive full access or if they wish to see what documents are available through the different processes. The agency must also explain the consequences of withdrawing their application [2] .

What if the documents are with legal representatives outside the agency?

The RTI Act applies to documents in the physical possession of the agency and to documents which the agency has the legal right to control.  Even if documents have been sent to a prosecutor, Crown Law, or an independent lawyer, people still have the right to access them by applying to the agency. See the guideline titled ‘Agency documents held by third party legal providers’ for more information on this issue.

RTI processing times and Court dates

People involved in Court processes sometimes seek access to documents through the RTI Act process close to their Court date.  They may ask agencies if a decision can be made sooner than the allowed processing time in the RTI Act.

There is no provision in the RTI Act to prioritise applications which relate to Court matters. If an agency chooses to try and process such applications quickly in order to meet the applicant’s deadlines it must take care to meet all its obligations in relation to processing applications and not take shortcuts in an attempt to shorten the time needed to process the application.

[1] 'JM' and Queensland Police Service (1995) 2 QAR 516
[2] If, after explaining alternative options for accessing documents, an applicant chooses to withdraw their RTI or IP access application, this agreement should be confirmed in writing between the applicant and agency to both ensure the outcome is clearly understood and as a record for the file.

Current as at: June 26, 2012