Transferring access applications

Overview

Under section 38 of the Right to Information Act 2009 (Qld) (RTI Act) and section 57 of the Information Privacy Act 2009 (Qld) (IP Act), an access application may be transferred from one agency 1 to another, in full or in part, in certain situations. 2

When can an access application be transferred?

An access application can only be transferred where:

  • the original agency does not have any or all documents applied for
  • the original agency knows that another agency has some or all of the documents applied for, and
  • that the other agency consents to the transfer. 3

A checklist (PDF, 70.52 KB) has been developed to assist in determining whether an agency may transfer the application to another agency.

Consent to transfer

An application can be transferred from the original agency to the second agency only if the second agency consents to the transfer. 4
However, 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 the second agency declines to accept the transfer, the original agency must continue to process the application. This may result in a decision to refuse access as the documents are nonexistent or unlocatable 5 because the original agency does not have possession or control of any relevant documents.  The applicant should be advised to apply directly to the second agency.

Transfer in full or in part

Part-transfer of an application

Section 38(4) of the RTI Act 6 allows the original agency to transfer part of the application to another agency and retain the rest of the application to process itself.  This is intended to cover situations when an applicant applies to an agency for a number of types of documents across a range of topics and the original agency only holds documents relating to certain parts of the application.

An agency cannot part-transfer an application simply because another agency has more documents than it does on a specific part of the application. The original agency must process the application in a way that ensures all potential documents held by that agency that are relevant to the application are located and dealt with. However, as a matter of courtesy the original agency may wish to inform the applicant that relevant documents may also be held by the second agency.

Transferring an application in full

If the original agency has no documents within the scope of an application, but it knows another agency does, it can transfer the entire application to that agency.

Note

An agency should take care when deciding it has no documents within the scope of an application, particularly during or after a Machinery-of-Government change, when some documents may have been transferred to a new agency and some retained by the agency which has received the application.

For example, while a business unit may be moved to another agency, some corporate records relating to that business unit may be retained, such as internal audit or ethical standards documents.

Noncompliant applications

An agency cannot transfer a noncompliant 7 application to another agency.
If an agency receives a purported application which does not meet the compliance requirements of the RTI Act or IP Act, the agency must take the necessary steps to make the purported application a valid application 8 before the access application can be transferred.
If the original agency is not able to make the application valid, it must make a decision to that effect under section 33(5) of the RTI Act 9 .
For further information on noncompliant applications see the Guideline: Noncompliant
applications

Advice to applicant

As a matter of courtesy and good practice, the original agency should contact the applicant and provide them with written notice of the transfer, advising:

  • that their application (including any identity documents, if applicable) has been transferred, in full or in part
  • which agency or agencies their application has been transferred to, including contact details
  • if a further application fee may be payable, and
  • the date their application was transferred.

Personal information applications

The RTI Act and IP Act only allow for the transfer of compliant access applications.  As the provision of evidence of identity is a compliance requirement for applicants who have applied to access documents containing their own personal information 10 , the receiving agency is able to transfer the application, including the applicant’s identity documents, to the second agency when they transfer the application in accordance with the legislation.

Although this transfer of personal information is authorised under section 38 of the RTI Act and section 53 of the IP Act, agencies should take steps to inform the applicant of the proposed transfer where possible.

Application fee

Non-personal applications

If an application is transferred in full any application fee paid to the original agency should be transferred to the second agency.

If an application is part-transferred any application fee paid must be retained by the original agency.  The applicant will need to pay a separate application fee to the second agency for the transferred part of the application. 11 The applicant should be advised where this is the case.

Part-transfer of application relating to personal information

If the transferred part of the application can be processed under the IP Act, ie it relates to a document containing the applicant’s personal information, no application fee will be payable to the second agency.

Where part of the application relating to non-personal information is transferred

If an application —
  • relates to personal and non-personal documents
  • the original agency retains the part of the application relating solely to the personal documents and can process those documents under the IP Act, and
  • the original agency transfers the part of the application relating to non-personal documents to the second agency

— the original agency must transfer any application fee paid to the second agency.

Processing period

Under section 18(2)(a) of the RTI Act, 12 the transfer period does not count as part of the processing period.  The transfer period is either—
  • ten business days, or
  • a period starting on the day the original agency receives the application and ending on the day it is transferred to the second agency

—   whichever is shorter 13 .

This means the maximum transfer period is ten business days.

Where a valid application is received by the original agency

Where a valid application is transferred to a second agency the processing period for the second agency does not start until the transfer period has ended 14 .

The processing period for the original agency begins on the day the valid application was received.  The transfer period does not apply to the original agency.

For further information on the processing period and calculating timeframes for transferred applications see the Guideline: How to Calculate Timeframes.

Dealing with the transferred application

An application which is transferred from one agency to another is taken to have been made to the second agency. 15 The second agency should therefore treat the transferred application as if it was received directly from the applicant.

1 In this Guideline, references to an 'agency' also include Ministers, unless otherwise specified. [up]
2 Section 57 of the IP Act allows an amendment application to be transferred to another agency in the same circumstances as an access application. [up]
3 See section 38 of the RTI Act and section 57 of the IP Act. [up]
4 See section 38(2)(b) of the RTI Act and section 57(2)(b) of the IP Act. [up]
5 See Section 52 RTI Act . [up]
6
And section 57(4) of the IP Act. [up]
7 That is, a purported application which does not satisfy the requirements for a valid application as set out in section 24 of the RTI Act and section 43 of the IP Act. [up]
8 See section 33(1) of the RTI Act and section 53(1) of the IP Act. [up]
9 Or section 55(5) of the IP Act. [up]
10 See section 24(3) of the RTI Act and section 43(3) of the IP Act. [up]
11 See section 38(5) of the RTI Act. [up]
12 See section 22(2)(a) of the IP Act. [up]
13 See section 18 of the RTI Act and section 22 of the IP Act. [up]
14 See section 18(2)(a) of the RTI Act and section 22 of the IP Act. [up]
15 See section 38(3) of the RTI Act and section 57(3) of the IP Act. [up]

Current as at: August 25, 2015