This guideline outlines internal review1 rights for decisions made by an agency2 in relation to applications for access and amendment under the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act).
An applicant has a right of internal review (conducted within the agency), followed by external review (conducted by the Office of the Information Commissioner) of most reviewable decisions. Alternatively, an applicant may choose to apply directly for an external review.
Schedule 5 of the RTI Act and schedule 5 of the IP Act contain a list of reviewable decisions. Some of these cannot be internally reviewed, including3:
Only external review is available for these decisions.
An applicant who has been given a reviewable decision can apply for an internal review of that decision subject to the exceptions above. If an applicant applies for internal review of a reviewable decision, and the agency accepts it, the agency can also deal with search issues raised by the applicant:
For example, an agency gives the applicant a decision that documents are unlocatable because they searched location A, B, C and couldn’t find them. The applicant seeks internal review of the reviewable decision saying the agency should have searched in locations X, Y, and Z. The agency can deal with these search issues because they are part of a reviewable decision.
The agency could also deal with search issues at internal review if they made a decision refusing access to three documents because they were exempt, and the applicant applies for internal review of the reviewable refusal of access decision, but also says there should be four documents and the agency didn’t find the other one. Because the applicant applied for review of a reviewable decision, the agency can also deal with the search issue, even though it doesn’t relate specifically to the decision.
However, if no review of a reviewable decision has been sought, then issues of insufficient searching cannot be dealt with as an internal review. For example, the agency refuses access to three documents because they are exempt. The applicant accepts the refusal of access decision but says there should have been two more documents the agency didn’t find. Because they are not applying to have the reviewable decision reviewed, the agency cannot deal with the search issues as an internal review.
If an initial decision was made by the agency’s principal officer it cannot be internally reviewed, even if it is sent to an officer of another agency. If the initial decision you are looking at was made by the principal officer you must stop working on it and inform the applicant that their only option is to seek an external review from the Office of the Information Commissioner.
Standard decision letter templates will generally refer to both internal and external review rights. Where agencies use the standard decision letter template for decisions made by the principal officer, it is not uncommon for applicants to be misinformed about their review rights.
You should also advise the appropriate officers of the mistake, to help ensure they do not incorrectly use the standard decision letter template in the future. It is very important that applicants are given correct information about their review rights.
An application for internal review must:5
The 20 business day period starts on the date of the written notice not the date the applicant receives the written notice.
There is no fee for internal review applications. An applicant does not need to supply evidence of identity or authority if it was provided with the initial application.
An internal review must not be conducted by the original decision maker and it must be conducted by an officer who is no less senior than the original decision maker.8
It is important to ensure the decision maker has the appropriate delegation from the principal officer or Minister to make an internal review decision. See the Guideline: Who can make decisions under the RTI Act and the IP Act for further guidance.
The officer conducting the internal review must make a new decision as if the reviewable decision had not been made.9 This means the reviewing officer must consider all relevant documents again and decide to release documents unless it is contrary to the public interest to do so (keeping in mind the pro-disclosure bias required by the legislation).
Decision makers should also note that an applicant is not entitled to ask for access to different or more documents on review.
An agency must decide an internal review application as soon as practicable.10
If the applicant is not notified of a decision within 20 business days of their internal review application being made then the agency is deemed to have affirmed the original decision.11
This time cannot be extended, even with the agreement of the applicant, so it is important that internal review applications are allocated and processed promptly.
If the internal review decision maker locates more documents that were not processed as part of the original application these will also need to be considered. This can occur when an applicant raises sufficiency of search concerns as part of their internal review.
There is no need to consult again with a consulted third party if the decision on the relevant documents does not change.
However, if the internal review officer makes a decision to release documents contrary to the view provided by the third party then they must be provided with a prescribed written notice and access to the document must be deferred.
If additional information is being considered for release at internal review, and its release would reasonably be expected to be of concern to a third party, then they must be consulted as part of the internal review.12 As noted above, there is no extra time allowed for consultation at internal review.
The agency must give the applicant a prescribed written notice13 of the decision as soon as practicable after a decision is made (or taken to be made if the decision was not made within the 20 business day period).
If the internal review decision is reviewable then the applicant or a third party may apply for an external review to the Information Commissioner if they are not happy with it.
This section only applies to internal reviews under the RTI Act. If access to additional documents is granted on internal review the Disclosure Log rules apply14: if the documents do not contain the applicant’s personal information departments and Ministers must, and other agencies should, consider if the documents can be placed on the Disclosure Log.
See the OIC’s guidelines on Disclosure Logs for more information.
Current as at: August 25, 2020