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)¹.  It also provides examples of instruments of delegation (documents delegating authority) and an explanation of the RTI Act's protection and offence provisions.

Who can make decisions under the RTI Act?

The principal officer of an agency must deal with RTI applications unless the power to deal with an application is delegated.² 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 application; and
• 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 their decision making authority by direction.³

Who is the principal officer?

Principal officer is defined in schedule 5 of the RTI Act. The below table sets out who the principal officer is for each type of agency.

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.⁵ There is no requirement that the person be a member of staff of the Minister’s Office.

Principal officer may delegate

The RTI Act allows principal officers to delegate their power to deal with access applications to another officer of the agency.⁶

With the exception of local governments⁷, principal officers may also delegate their powers to the principal officer of another agency, provided the second principal officer consents. This power may then be sub-delegated within the second agency.⁸

Delegations and directions may be limited

Any delegation or direction may be general, limited to a specific function, limited to part of an application (for example, a person may be delegated or directed to deal only with third party consultation), limited to a specific position or valid for a specified  period of time.

Once a delegation or direction is given, the 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  A delegation or direction can be withdrawn at any time, either generally or for a specific application.

Who is an ‘officer of the agency’?

Principal officers can delegate to an 'officer of the agency'. An officer of the agency⁹ 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.

Delegations and directions must be in writing

Delegations and directions must be made in writing and signed by the person conferring the power.¹⁰ They can confer all of the powers to deal with 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 to an officer by reference to position title.  A delegation conferred on a position title, rather than to an individual by name, prevents a fresh delegation having to be made whenever the individual is absent, for example, takes leave, acts in other positions, or permanently vacates the position.

Some examples of instruments of delegation are contained in  Appendix 1.

Delegating or directing their power does not prevent the original holder from exercising their power.¹¹ Despite that, the delegated officer must exercise their delegated power independently and not under the direction of another person. Any attempt to do so may attract the offences discussed below.

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.

‘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 can include determining whether applications are compliant, which Act to process under, and 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 provide for internal review of reviewable decisions. Reviewable decisions are defined in schedule 5 of the RTI 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 decision by the end of the processing period, the RTI Act provides that a deemed decision to refuse access is taken to have been made by the principal officer or Minister.¹⁴ The principal officer or Minister must give a prescribed written notice of the deemed decision and refund the application fee as soon as practicable.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 RTI Act itself that declares the decision is taken to have been made by the principal officer or Minister.

Healthcare decisions

Section 30(5) of the RTI Act provides that a principal officer may not delegate the powers to deal with an application in relation to:

• making a ‘healthcare decision’¹⁶
• appointing a healthcare professional to make a healthcare decision¹⁷

There are similar restrictions on Ministers in relation to making healthcare decisions and appointing a healthcare professional to make a healthcare decision.¹⁸ For more information refer to OIC’s Guideline, Making Healthcare Decisions.

Decisions about financial hardship for non-profit organisation

A decision that a non-profit organisation is in financial hardship can only be made by the Information Commissioner.¹⁹ An agency’s principal officer or a Minister cannot make this decision. See Applying for financial hardship - organisations for more information.

Protections and Offences

Protections

The RTI Act provides that when access and/or publication of a document was—

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

—then no act of defamation or breach of confidence lies against the State, agency, Minister or decision maker.²⁰

Similarly, if access was given to a document or publication occurred and the above criteria 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 correct. 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, instructing them to act contrary to the requirements of the Act. There is a maximum penalty of 100 penalty units.

Discussing the application

Although it is an offence to give a 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 complex and may cause the decision maker to discuss matters with colleagues and senior officers, either to canvass views or to obtain guidance on, for example, the application of an exemption provision or a public interest factor.

Discussions should be informed by the pro-disclosure bias and the limited number of grounds on which access may be refused under the Act. Information resources from, and previous cases of, the Information Commissioner may assist in reaching a fully informed decision.

It is important that delegated officers know they are required by law to freely exercise their delegated powers to reach a decision independently and without the undue influence or direction of any person.

Appendix One: Examples of instruments of delegation

Examples of different types of delegations below, including:

• Example 1 - delegation within an agency
• Example 2 - delegation to another principal officer
• Example 3 – subdelegation

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 position or it may be a limited delegation).