Who can make decisions under the RTI Act and the IP Act?

This Guideline discusses who can make decisions under the Right to Information Act 2009 (Qld) ( RTI Act ) and the Information Privacy Act 2009 (Qld) ( IP Act ). It provides some examples of how valid 'instruments of delegation' (documents delegating authority) may be worded and an explanation of the protection and offence provisions.

Who can make decisions under the RTI Act and IP Act?

The principal officer of an agency must deal with RTI and IP applications unless the power to deal with an application is delegated. 1 Decision making is part of 'dealing with' an application, along with a range of matters relating to an application including:

  • the systems, structures, processes and resources to be allocated to dealing with an access and amendment application
  • taking reasonably practicable steps to obtain the views of a relevant third party when it may be reasonably expected they would be concerned about a decision to release information.

A Minister is required to deal with an application, unless they have conferred decision making authority by direction. 2

Who is a principal officer?

The term principal officer is defined in schedule 5 of the RTI and IP Acts. Who the principal officer is varies depending on the type of agency.

Principal officer for a department

The principal officer for a state government department is the chief executive of the department.

Principal officer for a public authority - officer declared by regulation

For a public authority where the principal officer is declared by regulation, the principal officer is the holder of that office. The office of vice-chancellor of each of the universities named in section 10 of the Right to Information Regulation 2009 (Qld) ( RTI regulation ) is the principal officer for the purposes of the definition of principal officer in schedule 5 of the RTI Act. 3

Principal officer – other public authorities

Other public authorities do not have a principal officer declared by regulation. If the public authority is a body that is constituted by one person (whether or not it is incorporated) the principal officer is that person. For a public authority that is constituted by two or more persons (whether or not it is incorporated) the principal officer is the person who is entitled to preside at a meeting of the body at which the presiding person is present.

Where there is an incorporated body that has no members, the principal officer is the person who manages the body's affairs.

Principal officer – for a local government, government owned corporation or subsidiary of a government owned corporation

For each of the above, the principal officer is the chief executive officer.

Power to deal with application may be delegated or directed to another person

Minister may direct another person

An application for access to a document of a Minister may be dealt with by the Minister or such person as the Minister directs. 4 There is no requirement that the person be a member of staff of the Minister's office. This means, for example, that a Minister may direct an individual agency staff member to deal with an RTI Act or IP Act application.

Principal officer may delegate

Section 30(2) of the RTI Act provides that the principal officer may delegate the power to deal with access applications to another officer of the agency. Section 50(2) of the IP Act is in the same terms, but applies to both access and amendment applications.

Principal officers of departments, government owned corporations and public authorities may also delegate their powers to the principal officer of another agency, provided the principal officer of the other agency agrees. This power may then be sub-delegated within the second agency. Where an agency's principal officer delegates the power to deal with an access or amendment application to another agency's principal officer, it is advisable for the delegated principal officer to prepare an instrument of delegation to effect the sub-delegation. 5

Principal officers of local government may not delegate their powers to the principal officer of another agency. 6

Circumstances in which it may be appropriate to delegate the powers of the principal officer to another agency are discussed below.

Note

The 'power to deal' also includes the power to conduct internal review. If officers are going to be conducting internal reviews, this needs to be specified in a delegation from the principal officer. If the officer is already delegated to deal with access and amendment applications, the internal review delegation could be included in the original delegation. The original decision maker on an application cannot perform the internal review in relation to the same application. 7

Delegations and directions may be limited

Any delegation or direction may be general, or limited to a particular function or part of an application (for example, a person may be delegated or directed to deal with the fees and charges aspect of an application). A delegation may be limited in time or to a position.

Once a delegation or direction is given, the delegated officer assumes responsibility for exercising the function or power that has been given to them by the principal officer or Minister. A delegation or direction can be withdrawn at any time, generally or with respect to a particular application.

Who is an 'officer of the agency'?

Schedule 5 of the RTI and IP Acts provide that an officer, in relation to an agency, includes the agency's principal officer, a member of the agency, a member of the agency's staff and a person 'employed by or for' the agency.

Example

A person 'employed by or for' an agency

Joe Bloggs is employed by the Department of Environment and Resource Management. His duties include providing secretarial support to the Queensland Heritage Council (a separate statutory body and 'agency' as defined in the RTI and IP Acts). The principal officer of the Queensland Heritage Council may delegate Joe the power to deal with applications under the RTI and IP Acts on behalf of the Queensland Heritage Council.

This is possible because Joe is employed for the Queensland Heritage Council by the Department of Environment and Resource Management.

Delegation to principal officer of another agency

The RTI Act and the IP Act allow the principal officer of a department, government owned corporation or public authority to delegate power to deal with applications to another agency's principal officer, provided there is agreement. 8 This ability may be useful for a small agency with limited experience in dealing with applications, or for the management of large volumes of applications, or where portfolio agencies may achieve an efficiency benefit in centralised processing. It may also allow for continuity following 'machinery of government' changes and other changes to agency structures.

Example

Delegation to another agency

The Department of Housing and Health is split into two separate agencies, with health-related functions moving to the new Department of Health. The officer of the original Department's RTI and Privacy Unit remain with the new Department of Housing.

Under section 30(3) of the RTI Act and the section 50(3) of the IP Act, the principal officer of the Department of Health delegates powers to deal with RTI Act and IP Act applications concerning health to the principal officer of the Department of Housing, who in turn delegates power to an RTI officer of that Department.

Choosing a delegated officer

Decisions of the delegated officer may be subject to review by the Information Commissioner on a question of law or on the merits of an application. Subsequently, applications may be judicially reviewed by the Supreme Court or taken on appeal to QCAT on a question of law.

Appendix 2 sets out some qualities to look for in a delegated officer. RTI officers can assist agencies to improve their business processes by drawing the relevant executive's attention to possible deficits that are apparent during the processing of RTI applications. The following qualities in a delegated officer are therefore important:

  • An understanding of the record keeping obligations under the Public Records Act 2002 (Qld) and an ability to identify patterns of poor record keeping practices in particular business units.
  • An ability to identify business units whose systems, practices or customer service skills result in frequent complaints from applicants.
  • An ability to identify classes of information being sought in access applications that meet the requirements of information to be published in an agency's publication scheme.
  • Confidence and assertiveness to raise matters of concern with an appropriate executive and to escalate the issue if there are no signs of improvement in time.

Delegation must be in writing

Where decision making powers are delegated, a written document must be prepared and signed by the person delegating the power. 9 The instrument of delegation can confer all of the powers to deal with RTI Act and IP Act applications or limit the powers as discussed above.

Section 27A(1) of the Acts Interpretation Act 1954 (Qld) provides that power may be delegated to a person by name, or an officer by reference to position title. A delegation conferred on a position, rather than an individual, conveniently covers absences such as recreation or sick leave, removing the need to issue a fresh delegation each time an individual delegate takes leave, acts in other positions or permanently vacates the position.

Agencies and Ministers may find it useful to express RTI Act delegations and directions to be:

  • in respect of applications under chapter 3, parts 1 to 7 of the RTI Act (this delegates powers in relation to initial access applications); and
  • in respect of applications for review under chapter 3, part 8 of the RTI Act (this delegates power to make decisions on internal review applications).

Equivalent delegations and directions under the IP Act are:

  • in respect of applications under chapter 3, parts 1 to 7 of the IP Act (this delegates power in respect of initial access and amendment applications); and
  • in respect of applications for review under chapter 3, part 8 of the IP Act (this delegates power to make decisions on internal review applications).

Delegations may also be in respect of any combination of the above. Some examples of instruments of delegation are contained in Appendix 1 .

Even where a power is delegated, the holder of the power may still exercise the power. 10 However, although the principal officer or Minister can still exercise their power, the delegated officer must exercise their delegated power solely and not under the direction of another person. There are relevant offences under both the RTI Act and IP Act which are discussed below.

Valid delegation

A valid instrument of delegation from the principal officer or written direction from the Minister removes any doubt about whether the decision is lawfully made by a person other than the principal officer or Minister. A decision made without authority may not be valid and the applicant may have rights of judicial review under section 20(2)(c) of the Judicial Review Act 1991 (Qld) The officer exercising powers without valid authorisation may not be entitled to the protections under the legislation. 11 A delegation should be issued before a decision is made by the delegated officer.

Hint

Consider developing a process within the agency that ensures regular reviews of the instruments of delegations to ensure currency of current agency structure, staff changes, renaming of roles, amalgamations of agencies and amendments to legislation etc.

'Dealing with' the application

Decision making

If the officer is delegated to deal with applications under chapter 3, parts 1-7 of the RTI Act, 12 they have the power to process applications and make decisions under the legislation (unless the legislation specifies that the decision must be made by the principal officer or Minister). 13 This may include determining whether applications are compliant, which Act to process under, whether any information is exempt or contrary to the public interest.

Consultation

In addition to decision making, the process of consulting with third parties may also be the responsibility of the duly delegated officer. In this case it will be the delegated officer's responsibility to determine whether there is a reasonable expectation that disclosure of the information would be of concern to the third party.

Internal review

Part 8, chapter 3 of the RTI Act and part 8, chapter 3 of the IP Act provide for internal review of decisions made by an agency or Minister. Reviewable decisions are defined in schedule 5 of the RTI and IP Acts.

An officer who deals with internal review applications must have an instrument of delegation or direction by the relevant principal officer or Minister to process internal review applications.

Power to revoke a delegation

Under section 27A(2) of the Acts Interpretation Act 1954 (Qld) , a delegation may be wholly or partly revoked by the principal officer or Minister. A delegation may be withdrawn at any time including before a decision is made in a particular case. Any revocation of the delegation must be in writing.

Exceptions to the delegations power

Deemed decisions

If an applicant is not given a written notice of the decision by the end of the processing period, the legislation provides that a deemed decision to refuse access to information is taken to be made. The principal officer or Minister must give a prescribed written notice of the deemed decision and refund the application fee as soon as practicable. 14

The legislation provides that the principal officer or Minister is taken to have made the deemed decision. 15 The act of preparing, signing and issuing the notice of deemed decision can be done by a delegated officer as part of 'dealing with' the application, because it is the statute itself that declares the decision is taken to have been made by the principal officer or Minister.

Because the deemed decision is taken to be made by the principal officer or Minister and there is no officer of the same or higher rank, the applicant has no right of internal review. 16 In these circumstances an applicant can apply for external review of a deemed decision.

Healthcare decisions

Section 30(5) of the RTI Act and section 50(5) of the IP Act set out particular exceptions to the principal officer's ability to delegate power to deal with an application. They provide that a principal officer may not delegate the powers to deal with an application in relation to:

  • making a 'healthcare decision' 17
  • appointing a healthcare professional to make a healthcare decision 18

There are similar restrictions on Ministers in relation to making healthcare decisions and appointing a healthcare professional to make a healthcare decision. 19

Note

Considering ensuring that the power to make internal review decisions is delegated. Without such a delegation, the principal officer may be required to make all internal review decisions (provided the principal officer did not make the original decision). For more information see the Guideline: Conducting an Internal Review.

Decisions about financial hardship for non-profit organisation

A decision to waive RTI Charges for a non profit organisation can only be made by the Information Commissioner. 20 An agency's principal officer or a Minister cannot make this decision. See the Guideline: Applications by non-profit organisations for financial hardship status for further information.

Protections and Offences

Protections

The RTI Act and the IP Act provide that when access and/or publication of a document was:

  • required or permitted under the RTI Act or the IP Act; and
  • it was authorised by a decision maker in the genuine belief that it was required or permitted under the RTI Act or the IP Act,

then no act of defamation or breach of confidence lies against the State, agency, Minister or decision maker. 21

Similarly, if access was given to a document or publication occurred and the criteria above were satisfied, then the person authorised or anyone concerned in giving or publishing the document does not commit a criminal offence.

Offences

It is an offence for a person to give direction (either orally or in writing) to the decision maker instructing them to make a decision that the decision maker does not believe is the correct decision under the legislation.

The person giving or attempting to give the direction can be fined a maximum of 100 penalty units.

It is also an offence for a person to give direction (either orally or in writing) to an employee of the agency or Minister involved in matters under the RTI Act and IP Act instructing them to act contrary to the requirements of the legislation. There is a maximum penalty of 100 penalty units.

Appropriate robust discussion

Although it is an offence to give direction to a decision maker, it is important to distinguish this from the situation where aspects of an application are debated internally. An application may raise a number of considerations which are not straightforward and may require the decision maker to discuss matters with colleagues and senior officers, either to canvass views or to obtain guidance on the application of an exemption or public interest factor for instance.

Any such discussions should be informed by the pro-disclosure bias and the limited number of grounds on which access may be refused under the legislation. It might also be helpful to consider information resources and previous cases and decisions from external reviews by the Information Commissioner to make a fully informed decision.

It is important that delegated officers feel confident in expressing their views and professional opinions frankly with senior officers and know that they are required by law to freely exercise their delegated powers under the legislation. A delegated officer should satisfy themselves that they have canvassed all the different views and are satisfied with the decision they have reached as a delegated officer. It is important that delegated officers have reached their decision independently and without undue influence or direction of any person.

  • 1 Section 30(1) of the RTI Act and section 50(1) of the IP Act.
  • 2 See section 31 of the RTI Act and section 51 of the IP Act.
  • 3 Section 10 of the Right to Information Regulation 2009 (Qld). Schedule 5 of the IP Act and section 7 of the Information Privacy Regulation 2009 (Qld) contains an identical list.
  • 4 Section 31 of the RTI Act and section 51 of the IP Act.
  • 5 See section 6.0 of this Guideline for more detail on instruments of delegation and Appendix 1 for sample templates of instruments of delegation.
  • 6 As clarified in section 30(3) of the RTI Act and section 50(3) of the IP Act.
  • 7 Section 80(3)(a) of the RTI Act and section 94(3)(a) of the IP Act.
  • 8 Section 30(3) of the RTI Act and section 50(3) of the IP Act.
  • 9 Section 27A(3) of the Acts Interpretation Act 1954 (Qld).
  • 10 Section 27A(10) of the Acts Interpretation Act 1954 (Qld).
  • 11 Protections can be found in sections 169-174 of the RTI Act and sections 179-183 of the IP Act.
  • 12 Or delegated under chapter 3 parts 1-7 of the IP Act.
  • 13 For example, healthcare decisions.
  • 14 Refund of application fee is for RTI applications only (section 46 of the RTI Act) and section 66 of the IP Act.
  • 15 Section 46 of the RTI Act and section 66 and 71 of the IP Act.
  • 16 Section 81 of the RTI Act and section 95 of the IP Act.
  • 17 'Healthcare decision' is defined in section 30(6) of the RTI Act and section 50(6) of the IP Act.
  • 18 Section 30(5) of the RTI Act and section 50(5) of the IP Act.
  • 19 Section 31(2) of the RTI Act and section 51(2) of the IP Act.
  • 20 Section 67 of the RTI Act.
  • 21 Sections 170-174 of the RTI Act; sections 179-183 of the IP Act.

Appendix One: Examples of instruments of delegation

Examples of different types of delegations below, including:

The words used are suggestions only and will need to be adapted as necessary by agencies (for example, it may be a delegation to a specific person or it may be a limited delegation).

Example 1

Delegation within an agency – access application under the RTI Act and access and amendment applications under the IP Act.

Under section 30(2) of the Right to Information Act 2009 ( RTI Act ), I, [name 1] [position title 1] as principal officer of [agency 1] delegate my powers in respect of application for access under chapter 3, parts 1 to 8 of the RTI Act, to any officer for the time that they are appointed as [position title 2].

Under section 50(2) of the Information Privacy Act 2009 ( IP Act ), I, [name 1] [position 1] as principal officer of [agency 1] also delegate my powers in respect of applications for access and amendment under chapter 3, parts 1 to 8 of the IP Act, to any officer for the time that they are appointed as [position title 2].

Dated this [day] of [month] [year]

[Signature of name 1]
[Name 1]
[Position title 1]

Example 2

Delegation from first agency to a second agency

Under section 30(3) of the Right to Information Act 2009 ( RTI Act ), I, [name 1] [position title 1] as principal officer of [agency 1] delegate my powers in respect of applications for access under chapter 3, parts 1 to 8 of the RTI Act, to [name 2] [position title 2] as principal officer of [agency title 2] with their agreement.

Under section 50(3) of the Information Privacy Act 2009 ( IP Act ), I, [name 1] [position title 1] as principal officer of [agency 1] also delegate my powers under chapter 3, parts 1 to 8 of the IP Act, to [name 2] [agency title] as principal officer of [agency title 2] with their agreement.

Dated this [day] of [month] [year]

[Signature of Name 1]
[Name 1]
[Position title 1]
[Agency name 1]

[Signature of Name 2]
[Name 2]
[Position title 2]
[Agency name 2]

Example 3

Sub-delegation within second agency after delegation from first agency.

Under section 30(3) of the Right to Information Act 2009 ( RTI Act ) and section 50(3) of the Information Privacy Act 2009 ( IP Act ), on [day] of [month] [year], [name 1] [position title 1] as principal officer of [agency title 1] delegated his/her powers in respect of applications for access under chapter 3, parts 1 to 8 of the RTI Act and applications for access and amendment under chapter 3, parts 1 to 8 of the IP Act, to myself, [name 2] [position title 2] as principal officer of [agency 2].

Under section 30(4) of the RTI Act, I, [name 2] [position title 2] as principal officer of [agency 2] hereby subdelegate my powers in respect of [agency 1] applications for access under chapter 3, parts 1 to 8 of the RTI Act to any officer for the time that they are appointed as [position title 3].

Under section 50(4) of the IP Act, I, [name 2] [position title 2] as principal officer of [agency 2] also hereby subdelegate my powers in respect of [agency 1] applications for access and amendment under chapter 3, parts 1 to 8 of the IP Act to any officer for the time that they are appointed as [position title 3].

Dated this [day] of [month] [year]

[Signature of Name 2]
[Name 2]
[Position title 2]

Appendix Two: Qualities of a delegated officer

The following qualities in a delegated officer may be relevant to consider:

  • A knowledge of the RTI Act and IP Act and an ability to apply the law.
  • A propensity to observe procedures required by law.
  • A knowledge of the rules of natural justice.
  • A competent decision maker including an ability to identify relevant and irrelevant considerations and make evidence based decisions.
  • An ability to make a decision that may disclose information expected to cause embarrassment to the government or a loss of confidence in the government.
  • An ability to make a decision concerning information that was created by a person of high seniority with the agency.
  • An ability not to exercise the power at the direction or behest of another person.
  • A propensity to exercise the power in good faith and not to abuse the power.
  • An ability to not blindly make a decision in accordance with established rules and policies without regard to the merits of the matter.
  • An ability to exercise the powers reasonably.

Access applications should also be processed as informally as possible and in keeping with the spirit of the legislation. The following qualities in a delegated officer are therefore important:

  • A service orientation which does not put technical considerations in the path of providing information that can be released.
  • A commitment to maximum disclosure of information.
  • An understanding of the business of the agency, its record-keeping and information management practices, systems and procedures.
  • A preparedness to assist applicants resolve issues with the agency where this can lead to the resolution of the RTI application or be of service to the applicant.
  • A preparedness to engage with and understand the business the applicant has had with the agency and the background to their issues.
  • A commitment to open government and the principle of maximum disclosure.
  • Excellent communication, problem solving and negotiating skills.

Current as at: June 5, 2017