This Guideline explains the requirements under section 36 of the Right to Information Act 2009 (RTI Act) for agencies1 to provide applicants with a schedule of relevant documents and a charges estimate notice (CEN) before the end of the processing period.
This section only applies to applications under the RTI Act because there is no requirement to supply either a schedule of documents or a CEN in the Information Privacy Act 2009.
Schedule of relevant documents
Schedule of relevant documents is defined in section 36(7) of the RTI Act as a schedule that:
- provides a brief description of the classes of documents relevant to the application in the possession, or under the control, of the agency or Minister; and
- sets out the number of documents in each class.
The schedule does not need to describe each document. Rather, the agency sorts the documents into classes, briefly describes the class, and sets out how many documents are in each class.
For example, a schedule of relevant documents for an application might be as follows:
Emails between departmental officers about the street upgrade
Memos from departmental officers to the Director-General about the street upgrade
Petitions from members of the public supporting the street upgrade
Petitions from members of the public objecting to the street upgrade
Reports on the impact of the street upgrade on native wildlife
Having a schedule of documents has a number of advantages. It can assist applicants to decide which documents they would like to access, which in turn reduces potential processing time, costs and disputes.
Other purposes of a schedule of relevant documents
Apart from the requirement in section 36 of the RTI Act, more detailed schedules of documents are often created for other purposes.
For example, the Information Commissioner may ask an agency for schedules to be prepared as part of an external review process. Decision makers may also create schedules as they process an application, indicating which documents should be released, whether consultation is required or where disclosure would, on balance, be contrary to the public interest.
Agencies using a Redax plug-in for Adobe Acrobat can use the Redax Report function to assist in generating a schedule of documents.
What if the documents contain exempt or contrary to public interest information?
An agency is not required to include any exempt information or contrary to public interest information in the schedule4.
Waiver of the requirement to supply a schedule of relevant documents
An applicant may waive the requirement for an agency to supply a schedule of relevant documents.
There is no requirement for applicants to make this waiver in writing; however, agencies should keep a record of any phone calls or other communication in which the applicant has made the waiver.
In some circumstances, there may be benefits for both the applicant and the agency if the requirement to provide a schedule of relevant documents is waived. This may be where:
- there are only a small number of documents captured by an access application; or
- where there are so many documents that the requirement to supply a schedule of relevant documents could significantly affect how long it will take an agency to process an access application and the amount of the processing charges.
An applicant should be advised of the option to waive the requirement to supply a schedule early on in the process, so that the agency does not waste processing time working on a schedule when the applicant does not require one.
Charges estimate notice (CEN)
A CEN is a written estimate of how much the processing of an access application is likely to cost, including any access charges. It is important that agencies issue CENs before the end of the processing period. Extra time requested under section 35 of the RTI Act (the further specified period) does not count as part of the processing period. See the How to Calculate Timeframes guideline for more information.
For more guidance on the processing period, further specified period, and deemed decisions see the Guideline: How to Calculate Timeframes
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.
In order to issue a CEN, the agency must:
- decide if any processing or access charges are payable for the application; and
- estimate the amount of those charges.
A CEN must advise the applicant of:
- the agency’s estimate of any processing or access charges
- how the agency arrived at the amount of the estimated charges
- the outcome of any request from the applicant to have the charges waived, including reasons if the decision was to refuse the waiver
- the day the decision was made
- their review rights on any decision that processing and/or access charges are payable (including a decision not to waive charges); and
- the name and designation of the person making the decision.
A CEN must also:
- tell the applicant that they may consult with the agency with a view to narrowing the application and reducing the charges
- advise the applicant that they must—either verbally or in writing—confirm, narrow or withdraw their application within 20 business days of the date of the CEN (or a longer period if the applicant and agency agree to extend it)
- tell the applicant that if they narrow their application within the 20 business days (or a longer period if the agency agrees to extend it), the agency must give them a new CEN. The agency should indicate that the second CEN will be the final one.
If there are no charges payable, for example if it is uneconomical to charge, then the CEN could form part of the decision notice.
Processing and access charges
The processing charge is a cost calculated based on the time it takes an agency to process an access application. 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.6
An access charge is the cost in relation to giving the applicant access to a document, for example it may include the cost of photocopies.
The RTI Act also provides that no processing charge is payable in relation to a document that contains any personal information of the applicant. 9 This means that you should exclude from your estimate the time it will take to process documents which contain the applicant’s personal information. There is no similar provision in relation to access charges so you should include all documents when estimating the access charges.
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. 10 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.
For more guidance on processing and access charges see the Guideline: Fees and charges .
What is the prescribed period for a CEN?
The prescribed period is the period of time given for an applicant to respond to the CEN - to either confirm, narrow or withdraw their application.11 The prescribed period is 20 business days from the date of the CEN, not from the date the applicant receives the CEN.
The applicant and the agency may agree to extend the prescribed period, but this agreement must be reached within the prescribed period, before the application is taken to have been withdrawn.
Although there is no requirement in the RTI Act, agencies should keep a record of any phone calls or other communication during which the applicant and the agency agreed to extend the prescribed period.
What happens once a CEN has been issued to an applicant?
The applicant has 20 business days from the date of the CEN to confirm, narrow or withdraw the application, although the applicant and the agency may agree to extend that period.
Any narrowing of scope by the applicant with a view to reducing the applicable charges needs to be done after issuing the first CEN and before the agency provides the applicant with the second and final CEN. This is because agencies are limited to issuing a maximum of two CENs for an application.13
In order for agencies to manage this process proactively they should have regular telephone contact with applicants who are seeking to narrow the scope of their application.
New charges estimate notice (issuing a second CEN)
The applicant will again have 20 business days in which to withdraw or confirm their application after which, if the applicant has not done so, the application will be taken to be withdrawn.
When issuing a new CEN based on the narrowed application, it can be helpful to the applicant to provide a summary of the original scope and estimated charges of the initial CEN. This can help the applicant compare the two CENs and see how the scope has narrowed and the estimated charges have been reduced.
What happens to the processing period when a CEN has been sent?
The period of time between the date of the first CEN and the day the applicant confirms the application or, if the applicant narrows the application, confirms the changed application is known as the revision period.16 The revision period is not included in the processing period. 17
If an applicant is considering narrowing the scope of their access application, agencies should use this time (while the clock has stopped) to actively consult with the applicant.
Can an applicant seek a review of the CEN?
It is important to remember a CEN must inform the applicant of their review rights on the decision that processing and/or access charges are payable, including how to apply for a review and the timeframe for making a review application.22
For more guidance on internal review process see the Guideline: How to Conduct an Internal Review.
Is an applicant required to pay the estimated processing and access charges?
There is no requirement in the RTI Act for applicants to pay for the estimated processing and access charges when confirming the CEN.
If payment of the estimated charges is received from the applicant at the CEN stage, it may cause difficulties for the agency in some circumstances, for example if the final charges payable are less than the estimated amount quoted in the CEN, requiring the agency to refund the difference.
For more guidance on payment of the processing and access charges see the Guideline: Fees and charges.
2 See section 18 of the RTI Act for definition of “processing period”.
3 Section 36(1)(b)(i) of the RTI Act. See 2.3 below for more detail.
4 Section 36 of the RTI Act, definition of ‘schedule of relevant documents’.
5 Section 36(7) of the RTI Act.
6 Section 56 of the RTI Act.
7 Sections 5 and 6 of the Right to Information Regulation 2009.
8 Section 58 of the RTI Act.
9 Section 59 of the RTI Act.
10 Section 61 of the RTI Act.
11 Section 36(7) of the RTI Act.
12 Section 36(3) of the RTI Act.
13 Section 36(5) of the RTI Act.
14 Section 36(4) of the RTI Act.
15 Section 36(5) of the RTI Act.
16 Section 18 of the RTI Act.
17 Section 18 of the RTI Act, definition of “processing period”, part 2(c).
18 See sections 18 and 36 of the RTI Act.
19 How to Calculate Timeframes.
20 Section 81 and section 86 of the RTI Act.
21 See definition of ‘reviewable decision’ under Schedule 5 of the RTI Act.
22 Section 36(7)(g) of the RTI Act.
23 Section 54(2) of the RTI Act.
24 There is no obligation to pay any charges if an applicant withdraws their application prior to receiving an access decision.
Current as at: June 5, 2017