RTI, IP and COVID-19 planning
As agencies plan for possible office closures and/or change of work arrangements as part of COVID-19 preparations, they may encounter a number of right to information and privacy issues. To support right to information and privacy officers the below e-lecture and FAQs are available.
01:56 Processing Applications
02:05 Managing Timeframes
11:24 Contingency delegations
13:36 Changes to ID by email policies
16:18 Signing decision letters: electronic signatures and alternatives
19:35 Managing Privacy complaints
22:47 OIC and external review
23:03 Extending third party deferral
25:15 OIC and privacy complaints
Last updated 27 April 2020
I'm worried our applications will go deemed if the office closes/we work from home. Can we ask for extensions now?
Yes, you can ask for an extension at any time before an application goes deemed. See this news item for more information.
Should we wait longer than 20 business days to defer access to documents where we consulted with a third party who objected to release?
Due to potential community disruption, at the moment it would be prudent to wait an additional 5 business days.
If OIC's physical office closes or moves to reduced staffing there may be a need to wait longer as it may take longer for third party external review applications to reach us by post. We will keep agencies updated.
If you need to check whether OIC has received an application for review from a third party, the easiest way is to send an email to firstname.lastname@example.org and our Registry team will respond as quickly as possible.
My agency will be sending correspondence electronically only – does it have to be signed?
There is no requirement for prescribed written notices or other RTI or IP correspondence to be signed, but the community expects it. The simplest way to do this is to make an image of your signature that you can insert into letters as needed.
If this is not possible, we suggest putting a statement where your name and signature would usually go, for example 'Decision issued electronically by [decision maker name], [position title] on [date]'.
In either case, decision makers should send a non-editable PDF copy of correspondence, which can be created using Word’s in-built ‘convert to PDF’ function.
We're going to change our policy and accept certified ID by email while the office is closed/during changed work arrangements. Can we change back later?
Yes. It is at each agency's discretion whether to accept certified evidence of identity by email. If you want to temporarily change your policy to allow for greater flexibility while offices are closed and/or staff are working from home, you can change it back when that flexibility is no longer required.
You should let people know this is a temporary measure due to the impact of COVID-19.
We have external review deadlines we won't be able to meet due to office closures/work from home arrangements. Will OIC take that into account?
Yes, but it's important you contact your external review officer to discuss it beforehand. See this news item for more information.
We have privacy complaints that are going to hit their 45 business days soon. If the complainants take them to the OIC, will OIC take office closures/staff working from home into account?
If the OIC thinks your agency hasn't had enough time to deal with the complaint, we don't have to accept it. One of the factors we'll consider will be changes caused by the current circumstances. See this news item for more information.
What happens if agency offices are closed and we can't source hard copy documents? Or there is no one to search for or scan documents?
As part of managing the impact of COVID-19, many agencies are moving, or have moved, to working out of the office. This will cause difficulties for RTI officers as some documents, particularly hard copy documents, may be inaccessible from a remote location. It also limits the officers available to search for relevant documents, not just because those officers may be working from other locations, but because they may have been deployed to other duties.
The reality is that for decision makers processing applications as COVID-19 progresses, some documents within the scope of applications are simply not going to be accessible.
The first step is to discuss the situation with the applicant. Be open about the documents that cannot be accessed and why. If the applicant is willing to amend the scope of their application to cover only documents that can currently be accessed, and make an application for the other documents at a later time, that will resolve the situation.
If the applicant is not willing to amend their application, you will have to process it as originally made.
It is important that your decision addresses all documents within the scope of the application, taking into account the limitations on your ability to have searches undertaken and documents located. If you know documents exist but they cannot be located due to limitations such as office closures, officers being deployed to other duties, or other reasons related to COVID-19, section 52 of the RTI Act may apply.
Section 52(1)(b) of the RTI Act will apply if the document should be in the agency's possession and all reasonable steps have been taken to find the document but it cannot be found. Under section 52(1)(b), you must take all the steps that are reasonable in the circumstances to locate the document and ensure that your decision sets out the steps taken and why, in the current circumstances, those were the only reasonable steps that could be taken. For more information, refer to the Documents nonexistent or unlocatable guideline.
Are there alternatives to applicants providing certified ID?
Applications for personal information must be accompanied by the applicant's ID. Even if the applicant provides a clear, colour copy of their ID, this is not the same as allowing the agency to sight it. If they provide a copy of their ID, regardless of the quality, it must be certified.
As the COVID-19 situation evolves, with people instructed to stay home apart from essential outside travel, meaning limited access to qualified witnesses, agencies could consider video conferencing tools to virtually sight ID as an alternative to receiving certified ID. This would satisfy the requirements of the Acts.
Before you consider using video conferencing tools, you will need to fully consider any privacy and security risks they pose for your agency and the applicant. In some instances, this will require the applicant to take a number of steps to secure the video conferencing app at their end, requiring you to consider if this is reasonable in the circumstances. You will also need to be confident that the person using the app is the applicant.
Many of our consulted third parties are small businesses who may not be deemed essential. What happens if they close and we cannot consult with them for months?
If you are considering releasing a document but there is a reasonable expectation disclosure would be of concern to a third party, you must take ‘steps that are reasonably practicable’ to obtain the views of the third party. This obligation applies even if a business is closed due to COVID-19 precautions.
While it is likely that many businesses will close, they will likely retain access to their post and email. That should be the first point of contact. You could also use verified social media accounts to establish initial contact (through private or direct messaging).
Where a business is not a company, meaning the business is not a separate legal entity to the person who runs it, it may be possible to locate personal contact details for the owner and consult with them at those details.
You should refer to Consulting with a relevant third party for more information, but if you've taken all reasonably practicable steps and cannot obtain the third party's views, you can make a decision to disclose the documents. Detailed file notes of your consultation efforts would be advisable.
We have a lot of law firms acting for client applicants who will only pay by cheque. How do we deal with that with the office closed and no way to access the mail?
One suggestion for managing this scenario is to ask the law firm to email through the application form and a scan of the cheque and ask the lawyer to confirm in writing that they have posted the cheque to the agency and provide details of:
- the date it was posted; and
- the method it was sent by (eg Priority, Express etc).
Australia Post provides delivery times on their website. If you choose to use this method, the application will be valid on the day Australia Post says the cheque and application form would have been delivered to the agency (or the next business day if the number of days between posting and arrival ends on a weekend or public holiday).
It will also be important to advise the law firm that the cheque will not be processed until the agency offices reopen, so they can make any necessary adjustments at their end.
Do we still have to retrieve records from State Archives? What if they have to be digitised? Who has to pay the charges?
Queensland State Archives (QSA) has advised that as at March 25 they have suspended physical delivery of records to agencies. Agencies can still access their records held at QSA by:
- digital delivery of records (where possible); or
- collection from QSA if original records are required.
If you would normally have an obligation to retrieve documents from QSA in response to an access application, that obligation still exists. QSA’s new procedures do not change it. However, you will need to adapt your usual procedures and have upfront discussions with applicants.
Wherever possible, you should explore having records collected from QSA. Many courier services are still operating, and this may be an option for retrieving physical records from QSA. If collection is not possible, it will be necessary to consider digital delivery.
To provide records digitally, QSA will first have to digitise them. There is a charge (temporarily reduced) for this service.
Both the RTI and IP Regulations allow the actual cost of document retrieval to be passed on to the applicant. It is part of the access charge. However, this only applies to documents actually in the scope of the application. If, for example, an entire archive box has to be digitised because you don’t know which of its documents will be in scope until you inspect them—if it turns out only 10 percent of its documents are in scope, you can only pass ten percent of the digitisation cost onto the applicant.
Before retrieving the documents, discuss the situation and potential charges with the applicant. Some applicants might prefer to wait and lodge their application again once QSA is delivering physical documents.
Even if the applicant is agreeable to the charges in your initial discussion, you will still (for RTI applications) need to issue a CEN once you know what proportion of the digitisation cost is payable by the applicant. For an IP application, you will include the digitisation cost as part of the access charge in the decision notice.
If you are able to retrieve physical records from QSA using a courier service, those costs can also be passed to the applicant as an access charge.
Inspect only access
Under the RTI and IP Acts, you can give access by way of inspection over the applicant’s preferences to protect a third party’s copyright. Access by inspection can also be given for other reasons, including where documents are large or fragile. While offices are shut down during the COVID-19 pandemic, inspection is, in most cases, not possible.
Inspection because copyright is held by a third party
Where the document you’re giving access to is protected by copyright and inspection is not possible due to office closures, you could consider whether the copyright holder would give permission for you to give access by way of copies.
Whether it is appropriate, or feasible, to contact the copyright holder and ask will be up to each decision maker to decide. If the copyright holder does give permission, you will need to appropriately mark and secure the documents to protect their copyright.
Expectation of release by way of copies
While Queensland’s RTI and IP Acts allow access to be given in another form to protect another party’s copyright, they don’t allow it to protect the copyright of the State. Similar provisions appear in some other jurisdictions’ access legislation (see, for example, section 68(4) of the Commonwealth Freedom of Information Act 1982).
If copyright is held by a government entity you reasonably believe, because of their jurisdiction’s access legislation, would not expect their copyright to be exercised against an access applicant you may wish, in the current circumstances, to consider giving access to the documents by way of copies.
These copies would need to be appropriately marked and secured.
Marking and securing documents
If you do decide to give copy access to copyright documents, you should create a separate PDF that only contains those documents. This PDF can have additional watermarks that state they are subject to copyright, who the copyright holder is, and that they cannot be reproduced without permission.
These documents can be secured (File>Properties>Security) in Adobe Acrobat to restrict document printing, assembly, changing, content copying, page extraction, etc. This is consistent with protecting the copyright and makes the documents as close to ‘inspect only’ as possible when providing the applicant with a copy.
No option but inspect only
If access by way of inspection is the only option but is not currently possible due to the pandemic, the Acts allow you to grant an additional period of time beyond the initial 40 business days for the applicant to access the documents. There is no limit on this period, so you can extend it until the office reopens and the applicant can inspect the documents. If matters are urgent, you may wish to consider making arrangements to provide the applicant with information about what is in the copyright documents, or provide a brief summary, but this must be balanced with your team’s workload and capacity.
We still send some of our decisions by mail. Is there any way to manage Australia Post's new delivery times?
Yes. Please refer to this news item for some more information.