Noncompliant applications

Under the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act), there are certain requirements that must be met for an access application to be valid. This Guideline examines those requirements and offers suggested processes for agencies1 to follow when dealing with noncompliant applications.

What is a valid application?

In order for an application for access to information to be valid, it must comply with the requirements set out in section 24 of the RTI Act or section 43 of the IP Act. This means that an access application must:

  • be in the approved form
  • be accompanied by the application fee2
  • give sufficient information concerning the document to enable an officer of the agency to identify it; and
  • state an address to which notices may be sent.3

For RTI applications only, the applicant must state whether or not they are accessing the documents to benefit another entity (the beneficiary) and, if they are, identify the beneficiary.

For both RTI and IP applications, an applicant who is seeking access to a document containing their personal information, must provide evidence of identity with the application or within 10 business days after making the application4.  If an agent is acting for them, the agent must also provide evidence of identity.

Evidence may be provided in a number of ways. Applicants can send a photocopy of the identity document (ID), which has been certified by a Justice of the Peace, lawyer, or Commissioner for Declarations as a correct copy of the original5, to the agency. Alternatively, the applicant could attend at an office of the agency and show their ID to an agency officer, who can make a file note confirming the ID has been sighted.

Who is the applicant?

The applicant is the person who is seeking the document, as per the completed form.  They can never be the same person as the agent or the entity for whose benefit the applicant is applying (the beneficiary).  Generally, the person who pays the application fee will be the applicant.

People completing the application form may be confused about whether they answer the question referring to agents or to beneficiaries if they are applying on someone else’s behalf. If they have put the same details in both sections of the application form you will need to contact them to clarify the situation.

There are a number of possible combinations of agent, applicant and beneficiary:

  • Applicant (individual or company/organisation with a nominated contact person).

Examples

Rory (applicant) applies for access to Amy’s personnel file.

New Dog Magazine (applicant) applies for documents about the Department of Dogs’ State-wide ban on off-leash dog parks. Donna is a journalist employed by the Magazine and the nominated contact person.

  • Applicant (eg individual or company/organisation with a nominated contact person) who intends to benefit another entity.6

Examples

A freelance journalist (applicant) wants to demonstrate to New Dog Magazine that her proposed story is accurate; she applies to the Department of Dogs for access to documents about the number of purebred dogs registered in the last decade, intending to give the documents to the Magazine (beneficiary).

A parent (applicant) applies to the Department of Roads for information about plans to upgrade a road near their children’s school. They intend to give the information they receive to the Parents & Citizens Association (beneficiary).

  • Agent acting on behalf of Applicant.

Examples

Tony (applicant) wants to access his complaint file from the Department of Complaints but he is in hospital. He asks Sandra (agent) to make the application for him and deal with the process.

New Dog Magazine (applicant) intends to sue their competitor and wants access to the Department of Publications’ records. They retain a lawyer (agent) to make the application on their behalf.

  • Agent acting on behalf of Applicant and the applicant has the intention of benefiting another entity.

Example

New Dog Magazine (applicant) retains a lawyer (agent) to apply on its behalf to the Department of Dogs for documents about their ban on off-leash parks. They intend to give any documents they access to the Dog Club (beneficiary) and the local newspaper (beneficiary).

What should an agency do if the application does not comply?

Agencies are required to make reasonable efforts to contact the person within 15 business days after receiving the purported application and inform them about why their application does not comply.5 There is an onus on agencies to provide assistance to help applicants make an application which satisfies the compliance requirements.

What constitutes reasonable efforts will depend on the circumstances of each application, including the ease with which the applicant can be contacted and any preferred means of communication that the applicant has identified.

The agency must make genuine attempts to contact the applicant within 15 business days and inform them about the ways in which their application is noncompliant. It is not acceptable for agencies to immediately refuse to deal with an application because it does not comply with the application requirements.

What happens after the applicant has been informed that the purported application is not compliant?

After informing the applicant about how their purported application is noncompliant, the agency must give the applicant a reasonable opportunity to consult with the aim of making a compliant application.6 Here, a reasonable opportunity or time which the applicant should be given to consult with the agency is one which is reasonable in all the relevant circumstances of the case.

The agency should avoid making a policy decision that applicants are only allowed a set period (eg 10 business days) to consult with the agency with a view to making a compliant application, as this does not take into account any unpredictable or unusual circumstances which might apply to some applicants.

This is an issue of particular importance for applicants who are incarcerated. There may be considerable delays in the receipt and postage of communication to and from prisoners so that an arbitrary time period imposed by an agency could easily be exceeded. It may also take some time for a prisoner to obtain a copy of their identity card and have it certified by a corrective services officer, then arrange postage of it to the relevant agency.7

OIC encourages agencies that have received noncompliant applications from applicants in extenuating circumstances, such as prisoners, to consider a reasonable opportunity such as a minimum of 20 business days. For all other applicants, 15 business days will usually be reasonable if there are no circumstances which could delay the process.

In some cases, the agency may have to enter into an exchange of correspondence with the applicant as one letter, phone call or email may not be enough. Agencies are not restricted to just one opportunity to consult with the applicant with a view to making an application in a form which complies with the application requirements.

When can an agency refuse to deal with a noncompliant application?

If an agency has contacted the applicant, informed them of how the purported application does not comply, given the applicant at least 15 business days (or 20 business days for prisoners) to consult with a view to making the application compliant and no response has been received from the applicant, the agency can issue a prescribed written notice of its decision to refuse to deal with the application on the basis of noncompliance.8 This also applies to the situation where an agency has consulted with the applicant and given them a reasonable opportunity to meet the compliance requirements, however the applicant has still failed to make the application compliant.

Remember

The processing period does not commence until the application is compliant. Therefore, if an agency is waiting for the applicant to meet the compliance requirements in order to make the application valid (eg certified evidence of identity or the payment of the application fee), the 25 business day processing period has not yet begun.

Can an applicant seek review of an agency decision to refuse a noncompliant application?

Yes.

A decision that an access or amendment application does not comply with all relevant application requirements is a reviewable decision.9 Therefore, an applicant who is affected by an agency’s decision to refuse to deal with a noncompliant application can apply for internal and/or external review of that decision.

  • 1 In this Guideline, references to an 'agency' also include Ministers, unless otherwise specified.
  • 2 Only for access applications under the RTI Act.
  • 3 This is not restricted to a physical address; an email address is sufficient.
  • 4 Section 24(3) of the RTI Act; section 43(3) of the IP Act.
  • 5 RTI Regulation, section 3; IP Regulation, section 3. See the Guideline Evidence of Authority and Identity for more information about identity requirements.
  • 6 An agency is not required to independently establish whether an applicant intends to benefit another entity; they can rely on what the applicant tells them.
  • 7 The evidence of identity for prisoners is set out in section 3 of the Right to Information Regulation 2009.
  • 8 Section 33(6) of the RTI Act; section 53(6) of the IP Act.
  • 9 Schedule 5 of the RTI and IP Acts.

Current as at: June 5, 2017