Managing noncompliant applications
Where an applicant makes an access application under the Right to Information Act 2009 (Qld) (RTI Act)1 that is not compliant an agency is required to follow specific steps, giving the applicant a chance to make the application compliant. If the applicant does not make their application compliant, the agency2 can make a decision not to process the application. This is a reviewable decision.
The processing period and noncompliant applications
The processing period is a 25 business day period in which an agency must give the applicant a reviewable decision.3 Day one of the processing period starts on the next business day after the agency receives the application, even if the application is noncompliant.4
When dealing with a noncompliant application, or any other application with a defect, it can be helpful to think of this as the initial processing period, because if the applicant rectifies the defects in their application, the processing period will begin again.
Agencies will need to assess new applications and, if they are noncompliant, give applicants a reasonable opportunity to rectify their application before the end of the initial processing period. If necessary, agencies should ensure they request extensions of time under section 35 of the RTI Act.
Before the end of the initial processing period or any extensions, either the:
- agency must give the applicant a decision that they are refusing to deal with their application because it is noncompliant; or
- the applicant must make their application compliant.
If neither of these occur, the agency will be deemed to have made a decision refusing access to the documents applied for.5
If the applicant makes their application compliant, the processing period will begin again at day one on the next business day.6
For more information refer to: Timeframes for noncompliant and other defective applications.
When is an application compliant?
The requirements of a compliant application are set out in section 24 of the RTI Act and section 43 of the IP Act.
| RTI Act | IP Act |
|---|---|
| Be on the approved form, unless the agency decides to accept it in another way that contains all the information requested by the form. See 'Substantial compliance' below. | Be on the approved form, unless the agency decides to accept it in another way that contains all the information requested by the form. See 'Substantial compliance' below. |
| Be accompanied by the application fee. | No application fee required. |
| Give sufficient information concerning the document to enable an officer of the agency to identify it. | Give sufficient information concerning the document to enable an officer of the agency to identify it. |
| State whether or not the applicant is accessing the documents to benefit another entity (the beneficiary) and, if they are, identify the beneficiary. | No beneficiary requirement. |
| Include evidence of ID, and if the applicant has an agent, include evidence of the agent's ID and evidence of authority,7only if the application is for the applicant's personal information. | Must always include evidence of ID, and if the applicant has an agent, include evidence of the agent's ID and evidence of authority.8 |
| State an address to which notices can be sent. | State an address to which notices can be sent. |
Refer to Appendix One for assistance on determining who is the applicant, who is the agent, and who is the beneficiary.
Substantial compliance
While the Act requires applications to be made on the approved form, agencies have the discretion to accept applications in another way—as long as that way substantially complies with the application form.9 This could happen, for example, where the applicant sends an email or letter to an agency that contains substantially the same information required by the application form
Evidence of identity and authority
Identification requirements are set out in the Right to Information Regulation 2009.10 Evidence of authority requirements can vary, depending on the relationship between the applicant and their agent. Agencies should refer to Evidence of Identity and Authority for more information.
Accompanied by the application fee
Generally, if payment accompanies the application, the application will be compliant when it is received by the agency (presuming all other application requirements are satisfied), regardless of how long the agency takes to process the payment. There are some exceptions, however.
If there is a form of payment the agency cannot process, or has made a policy decision not to accept, the application will not be compliant when accompanied by that form of payment.
Similarly, if there is a form of payment the agency can only accept in a specific way, the application will not be compliant when accompanied by that form of payment made in a different way. For example, if the agency is only able to accept credit card payments made over the phone, the application will not be compliant until the applicant makes payment in a way the agency is able to process.
In these circumstances, applicants should be advised of the payment issues as quickly as possible. It would also be best practice to include any payment limitations on the agency's website.
Sufficient information concerning the document to enable an officer of the agency to identify it
An access application must give sufficient information concerning the document to enable a responsible officer of the agency to identify the document. Applicants must describe the documents they want to access with sufficient specificity to allow the decision maker to identify the documents being applied for; conduct searches for the documents; and make decisions on the documents.
The size of the agency and the way documents are stored and filed (eg centrally versus regionally) will be relevant when making this determination.
For detailed information on assessing the terms of an application to determine if it is compliant, please refer to Assessing the Terms of an Access Application.
What if an application is noncompliant?
Remember
The processing period starts when the application is received, even if it's not compliant with the requirements of the Act.
Agencies should consider both the applicant's circumstances and their need to deliver a noncompliance decision or have the applicant make the application compliant before the end of the initial processing period and seek extensions where appropriate.
An agency must make reasonable efforts to contact the applicant within 15 business days to tell them why their application is noncompliant11and give them a reasonable opportunity to consult with the agency with the goal of making the application compliant. What is reasonable will depend on the circumstances.
OIC encourages agencies that have received noncompliant applications from applicants in extenuating circumstances, such as prisoners, to consider allowing a minimum of 20 business days. For all other applicants, 15 business days will generally be reasonable if there are no circumstances which could delay the process.
It may be necessary to work with the applicant to make their application compliant, and agencies should consider extending time where it is appropriate to do so. If the applicant does not make the application compliant, the agency can make a decision not to process the application.
- 1 And the Information Privacy Act 2009 (Qld) (IP Act).
- 2 In this Guideline, references to an 'agency' also include Ministers, unless otherwise specified.
- 3 Section 18 of the RTI Act and Poyton and Department of Education [2023] QICmr 13 (16 March 2023) (Poyton and Department of Education)
- 4 Poyton and Department of Education
- 5 Poyton and Department of Education
- 6 Poyton and Department of Education
- 7 Or evidence of relationship where it is a parent applying on behalf of a child.
- 8 Or evidence of relationship where it is a parent applying on behalf of a child.
- 9 Section 48A of the Acts Interpretation Act 1954.
- 10 And the Information Privacy Regulation 2009.
- 11 Section 33 of the RTI Act.
- 12 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.
Appendix One
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).
Current as at: September 7, 2023