Applications outside the scope of the Act

The Right to Information Act 2009¹ (Qld) (RTI Act) gives people the right to apply to access documents in the possession or control of Queensland government agencies. The RTI Act also places limitations on this right, specifically excluding some documents and entities from the Act.

What is an agency?

Under the RTI Act, people can apply to agencies for documents of agencies.² is defined in section 14 of the RTI Act, and it does not include the entities listed in schedule 2 of the RTI Act. Document of an agency is defined in section 12 of the RTI Act and does not include the documents listed in schedule 1 of the RTI Act.³

Refer to What is an agency and Documents of an agency and a Minister for more information.

Outside the scope of the Act

Under section 32 of the RTI Act, an entity can decide that a purported application is outside the scope of the Act if it

• is for a document which is a document to which the Act does not apply; or
• has been made to an entity to which the Act does not apply.

A purported application is also outside the scope of the Act if it is made to the Information Commissioner, Right to Information Commissioner, or Privacy Commissioner.

Dealing with an application outside the Act

Under section 32, an agency must give the applicant written notice that their application is outside the scope of the Act within ten business days of receiving the application. This is a reviewable decision.

Notwithstanding this requirement, if an agency has not given the applicant a reviewable decision within 25 business of receiving the application they will be deemed to have made a decision refusing access to the documents applied for.⁴

Dealing with a mixed application

In some circumstances, agencies will receive applications that include documents of an agency and documents excluded from the Act under schedule 1 or schedule 2, part 2 of the RTI Act. The OIC refers to these as mixed applications.

The processing period is a 25 business day period in which an agency must give the applicant a reviewable decision.⁵ The processing period starts when the agency receives an application, even if the application includes documents outside the scope of the Act.⁶ The day the application arrives is day zero, the next business day is day one.

When dealing with a mixed application, or any other application with a defect, it is helpful to think of this as the initial processing period, because if the applicant rectifies the defect—in this case by removing the out of scope documents from their application—the processing period will begin again.

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

• the applicant must remove the schedule 1 and/or 2 documents from their application; or
• the agency must give the applicant a decision that their whole application is outside the scope of the 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.⁷

In the first instance, the agency should discuss the situation with the applicant and ask if they're willing to remove the documents excluded from the Act.

If the applicant agrees to remove the schedule 1 and/or 2 documents, the processing period will begin again, as long as the application is otherwise compliant. The day the applicant agrees to limit their application only to documents which can be applied for under the Act will be day zero of the recommenced processing period. The next business day will be day one.

Refer to Timeframes for noncompliant and other defective applications for more information.

Documents excluded from the Act

Schedule 1 of the RTI Act lists documents to which the RTI Act does not apply. These documents are not subject to the RTI Act and there is no right to apply for them. An application for access to a schedule 1 document is outside the scope of the RTI Act.

For more information on the documents listed in schedule 1 of the RTI Act, refer to Documents to which the RTI Act and IP Act do not apply.

Entities excluded from the Act

Schedule 2, part 1 of the RTI Act list entities which are entirely excluded from the RTI Act⁸ An access application made to an entity listed in schedule 2, part 1 of the RTI Act is outside the scope of the RTI Act.

Schedule 2, part 2 of the RTI Act lists entities which are only excluded in relation to the listed function. An access application made to an agency listed in schedule 2, part 2 requires an assessment of the application to determine which functions it relates to. If it relates to a function mentioned in schedule 2, part 2, the application is outside the scope of the RTI Act.

Schedule 2, part 2 entities

RTI Processing documents

Documents of the holder of an office connected with a quasi-judicial entity in relation to the entity’s quasi-judicial functions are excluded from the Act.⁹

The Commissioner found in T71 and Queensland Police Service,¹⁰ that:

• the Information Commissioner is a quasi-judicial entity
• the Information Commissioner’s external review functions are quasi-judicial functions; and
• an agency decision-maker who processes an access application and makes a reviewable decision on the application is ‘connected with’ the Information Commissioner in relation to the Information Commissioner's quasi-judicial functions.

This means that an agency’s RTI and IP initial processing documents, as well as any internal review processing documents, are excluded from the relevant Act as documents that are ‘in relation to’ the exercise of the Information Commissioner’s quasi-judicial functions. The application does not need to have proceeded to an external review for its processing documents to be excluded from the Act.

Other judicial entities and functions

Judicial entities are excluded from the RTI Act for their judicial functions, including judicial administration, quasi-judicial entities are excluded for their quasi-judicial functions, and tribunals are excluded for both.¹¹

• the settlement of disputes about existing rights and obligations, rather than the determination of future rights and obligations
• settling disputes between identified, rather than hypothetical or abstract, parties; and
• making decisions which are binding upon the parties.

An important factor is whether the function is performed in a judicial manner, ie:

• whether the decision maker applies established legal standards rather than a policy discretion;¹³ and
• whether the decision maker is independent and not subject to direction or control¹⁴.

Other factors which may suggest the exercise of a judicial function are that the:

• body hearing the dispute is bound by the rules of evidence
• body normally hears disputes in public, unless there is a good reason to do otherwise; and
• parties have a right to legal representation.

A quasi-judicial entity possesses some, but not all, of the characteristics of a judicial entity. A body exercising a quasi-judicial function will often:¹⁵

• have two parties to proceedings
• conduct hearings in public
• allow parties to have legal representation
• be required to act consistently with the requirements of justice; and
• be required to give reasons for its decision.

However, it may not be bound by the rules of evidence, consist of individuals appointed for a limited term, and/or make recommendations rather than binding decisions.

Government Owned Corporations (GOCs)

Several GOCs are included in Schedule 2, part 2. For these GOCs, the RTI Act only applies in relation to their community service obligations. Section 112 of the Government Owned Corporations Act 1993 states that community service obligations are obligations that, are not in the commercial interests of the GOC to perform, arise because of a direction, notification or duty to which this section applies, and do not arise because of the application of the following key principles of corporatisation (and their elements):

• Principle 3 – Strict accountability for performance
• Principle 4 – Competitive neutrality.

A GOC listed under schedule 2, part 2 of the RTI Act may not have any community service obligations. Any community service obligations a GOC is to perform must be included in the GOC’s statement of corporate intent¹⁷which is prepared each financial year.¹⁸