Applications made under the wrong Act

Dealing with access applications made under the wrong Act

This Guideline will assist decision makers to deal with access applications made under the Information Privacy Act 2009 (Qld) (IP Act) that are not limited to documents containing the applicant's personal information and Right to Information Act 2009 (Qld) (RTI Act) applications that could have been made under the IP Act.

The guideline Which Act applies? has more information about making this determination.

IP applications not limited to personal information

The IP Act only allows individuals to apply for documents which contain their personal information.¹ If you receive an access application under the IP Act² and it seeks access to documents that will not contain the applicant’s personal information you must follow³ section 54 of the IP Act.

Timeframes

The processing period is a 25 business day period in which an agency must give the applicant a reviewable decision.⁴ Day one of the processing period starts on the next business day after your agency receives an application, even if the application is an IP application not limited to documents containing the applicant's personal information.⁵

When an IP application is not limited to documents that contain the applicant's personal information, or has any other defect, it is helpful to think of this as the initial processing period. This is because if the applicant rectifies the defects in their application—in this case, if they change their application to one that can be processed under the IP Act—the processing period will begin again.

It will also begin again if they pay the application fee and transfer the application to the RTI Act.

Agencies will need to assess new IP applications and, if they cannot be made under the IP Act, give applicants the opportunities set out in section 54 before the end of the initial processing period. If necessary, agencies should ensure they request extensions of time under section 55 of the IP Act.

Before the end of the initial processing period or any extensions, one of the following must occur:

• the applicant must change their application so it can be made under the IP Act
• the applicant must pay the application fee to make their application under the RTI Act; or
• the agency must give the applicant a decision that the application cannot be made under the IP Act.

If one of these doesn't happen, the agency will be deemed to have made a decision refusing access to the documents applied for.⁶

When does the processing period reset if the applicant rectifies or switches?

If the applicant agrees to change their application by removing the documents that do not contain their personal information, the processing period resets. The day the agency receives the revised scope will be day zero of the reset processing period and the next business day will be day one.

Where the applicant transfers their application to the RTI Act, they are taken to have made the RTI application to the agency on the day they pay the application fee. The day the applicant pays the fee will be day zero of the new processing period that starts under the RTI Act and the next business day will be day one.

If the application still has defects when the RTI application fee is paid, eg the applicant has not provided their ID, the processing period that starts under the RTI Act will once again be the initial processing period. When the applicant fixes the remaining defects, eg they provide their ID, the initial processing period will reset.

For more information refer to: Timeframes for noncompliant and other defective applications.

How do I apply section 54 of the IP Act?

There are two options for the application to proceed: switch the application to the RTI Act or alter the scope to cover only documents containing the applicant’s personal information.  However, an agency cannot simply decide to do one or the other.  You must follow the process set out in section 54.

The first step is to contact the applicant and advise them that their application as currently written cannot be made under the IP Act.  Remember that applicants may not be familiar with the kinds of documents held by agencies and what they are likely to contain.  Providing the applicant with information about why all the documents will not contain their personal information will assist them in rectifying their application. An applicant must be given a reasonable opportunity to either:

• alter the scope so that the application can be made under the IP Act, or
• pay an application fee so that it can be dealt with under the RTI Act.

You should also consider explaining your agency’s record keeping practices and what type of documents were captured by the original scope.  This will help the applicant decide whether to pay the application fee so the application can be dealt with under the RTI Act or to amend their scope to only seek documents which contain their personal information.

Agencies should take into account their timeframes and the applicant's circumstances and seek extensions where appropriate.

Initial contact with the applicant

Section 54 of the IP Act does not require you to write to the applicant.  In circumstances where the application is ambiguous, or the applicant has selected the incorrect box on the form, you should consider making telephone or email contact with them to discuss the issues.  Making contact with the applicant as soon as possible can allow you to resolve the issues informally and in a timely manner.

It is good practice to confirm your conversation in writing and to make an accurate file note.  This will ensure both agency and applicant clearly understand what has been agreed to.

What happens next?

There are three possible outcomes when you apply section 54 of the IP Act.

1. The applicant changes the scope of their application so they are only seeking access to documents that contain their personal information.
2. The applicant pays the application fee and the application is switched to the RTI Act.
3. The applicant neither pays the application fee nor alters the scope of their application, meaning you will have to make a decision under section 54(5)(b).

Making a decision under section 54(5)(b) of the IP Act

If the applicant does not alter the scope or pay the application fee—or does not respond at all—you will have to again consider whether their application is one that can be made under the IP Act.  If you decide that it cannot, because it is not limited to documents that contain the applicant’s personal information, you must give the applicant a prescribed written notice of your decision.

This must be given to the applicant before the end of the initial processing period or any extension. It is a reviewable decision and your notice must include the applicant’s review rights.

RTI applications that could have been made under the IP Act

The RTI Act allows anyone to apply to access any document of an agency.  If you receive an RTI application that only seeks access to documents that contain the applicant’s personal information, meaning it could have been made under the IP Act, you must follow the steps set out in section 34 of the RTI Act.

Unlike making an application not limited to documents containing the applicant's personal information under the IP Act, making an application for documents containing personal information under the RTI Act is not a defect. The RTI Act simply gives the applicant the option to swap to the IP Act and a decision on the issue is not required if the applicant does not swap.

How do I apply section 34 of the RTI Act?

Section 34 of the RTI Act requires you to tell the applicant that they could have applied under the IP Act, with no application fee or processing charges, and that they may either:

• ask you to deal with their application under the IP Act; or
• confirm that they want the application to be processed under the RTI Act.

You have 15 business days from the date of the application to give this information to the applicant.

What do I do if the applicant asks me to deal with the application under the IP Act?

If the applicant asks you to deal with their application under the IP Act it is treated as a new application.  The processing period begins again under the IP Act, and the day they requested that you to move the application to the IP Act is day zero.

You must refund the application fee as soon as practicable.

When does the application continue under the RTI Act?

You will continue to deal with the application under the RTI Act if:

• the applicant tells you they want their application to remain under the RTI Act; or
• the applicant does not, within a reasonable time, either request that you process the application under the IP Act or confirm that they want you to continue processing the application under the RTI Act.

Again, it is good practice to confirm your conversation in writing and to make an accurate file note.