QUEENSLAND
Chapter 3 Disclosure by application under this Act
Part 1 Right to access
Right to be given access to particular documents
Subject to this Act, a person has a right to be given access under this Act to—
documents of an agency; and
documents of a Minister.
Notes—
1 See part 2 for how to exercise this right to access.
Exclusions of the right are provided for under part 4 (which provides particular circumstances where an entity may refuse to deal with an application) and section 47 (which provides grounds on which an entity may refuse access).
A limitation on the right is set out in section 73 (which provides that, in particular circumstances, an entity may delete irrelevant information from a document before giving access).
Subsection (1) applies to documents even if they came into existence before the commencement of this Act.
Note—
Section 27 deems an access application to apply only to documents that are, or may be, in existence on the day the application is received.
Part 2 Access application
24 Making access application
A person who wishes to be given access to a document of an agency or a document of a Minister under this Act may apply to the agency or Minister for access to the document.
Notes—
Minister is defined to include an Assistant Minister—see schedule 6.
Section 25 provides for access applications by parents for children and section 190 clarifies the powers of those acting for others.
For an application made for a person, the person (and not the agent) is the applicant—see schedule 6, definition applicant. This may be particularly relevant for section 66 (Applicant under financial hardship).
The application must—
be in the approved form and be accompanied by the application fee; and
give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and
state an address to which notices under this Act may be sent to the applicant; and
state whether access to the document is sought for the benefit of, or use of the document by—
the applicant; or
another entity; and
Example for paragraph (d)(ii)—
A journalist makes an access application for a document for use of the document by an electronic or print media organisation.
if access to the document is sought for the benefit of, or use of the document by, an entity other than the applicant—the name of the other entity.
Also, if the application is for access to a document containing personal information of the applicant, the applicant must provide with the application or within 10 business days after making the application—
evidence of identity for the applicant; and
if an agent is acting for the applicant—evidence of the agent’s authorisation and evidence of identity for the agent.
Examples of an agent’s authorisation—
the will or court order appointing the agent to act as the applicant’s guardian
the client agreement authorising a legal practitioner to act for an applicant
if the application is made in reliance on section 25, evidence the agent is the child’s parent
The application fee mentioned in subsection (2)(a) may not be waived.
Note—
However, an application fee must be refunded if a deemed decision is made—see section 46(1).
(5) In this section—
evidence of identity means the evidence of identity prescribed under a regulation.
25 Making access applications for children
Without limiting the ability of persons to make applications for children, an access application may be made for a child by the child’s parent.
Notes—
Section 190 clarifies the powers of those acting for others.
For an application made for a child, the child (and not the parent) is the applicant—see schedule 6, definition applicant. This may be particularly relevant for section 66 (Applicant under financial hardship).
In this section—
child means an individual who is under 18 years. parent—
Parent, of a child, is any of the following persons—
the child’s mother;
the child’s father;
a person who exercises parental responsibility for the child, including a person who is granted guardianship of the child under the Child Protection Act 1999 or who otherwise exercises parental responsibility for the child under a decision or order of a federal court or a court of a State.
However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child.
A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child.
A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child.
26 Access application may not be made to commissioner
An access application may not be made or transferred to the information commissioner, the RTI commissioner or the privacy commissioner.
Application for documents then existing
An access application is taken only to apply to documents that are, or may be, in existence on the day the application is received.
However, subsection (1) does not prevent an agency or Minister giving access to a document created after the application is received but before notice is given under section 54 (a post-application document).
If the agency or Minister gives the applicant access to a post-application document—
no processing charge or access charge is payable in relation to the document; and
the applicant is not entitled to review under this Act of a decision about the document made in relation to the application.
Application for metadata
An access application for a document is taken not to include an application for access to metadata about the document unless the access application expressly states that it does.
If an access application for a document expressly states that access to metadata about the document is sought, access to the metadata does not need to be given unless access is reasonably practicable.
In this section—
metadata, about a document, includes information about the document’s content, author, publication date and physical location.
Application not for backup system documents
An access application, however expressed, for a document does not require an agency or Minister to search for the document from a backup system.
However, subsection (1) does not prevent an agency or Minister searching for a document from a backup system if the agency or Minister considers the search appropriate.
Note—
While a search for a document from a backup system is not generally required before refusing access on the ground that the document is nonexistent or unlocatable, a search is required in the particular circumstances mentioned in section 52(2).
Part 3 Dealing with application
Division 1 Decision-maker
Decision-maker for application to agency
An access application to an agency must be dealt with for the agency by the agency’s principal officer.
The agency’s principal officer may delegate the power to deal with the application to another officer of the agency.
Also, for an agency other than a local government, the agency’s principal officer may, with the agreement of another agency’s principal officer, delegate the power to deal with the application to the other agency’s principal officer.
The principal officer of the other agency may subdelegate a power delegated to him or her under subsection (3).
Note—
Under the Acts Interpretation Act 1954, section 27A(2), a delegation may be revoked, wholly or partly, by the delegator. Accordingly, a
delegation may be revoked before a decision is made in a particular case and the delegator may make the decision.
However—
a principal officer may not, under subsection (2) or (4) delegate the power to deal with the application to the extent it involves—
making a healthcare decision; or
appointing a healthcare professional under paragraph (b); but
the agency may appoint an appropriately qualified healthcare professional to make a healthcare decision in relation to the application.
In this section—
healthcare decision means a decision about any of the following matters—
whether disclosure to the applicant of relevant healthcare information about the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51;
whether to refuse access under section 47(3)(d);
whether to give access despite being able to refuse access under section 47(3)(d);
whether to give a direction under section 77(2);
whether to approve a healthcare professional under section 77(2).
power to deal, with an access application, includes power to deal with an application for internal review in relation to the access application.
Examples of dealing with an application for internal review—
making a new decision under section 80(2)
giving notice under section 83(3)
Decision-maker for application to Minister
An access application to a Minister may be dealt with by the person the Minister directs, either generally or in a particular case.
However—
the Minister may not direct the person to deal with the application to the extent it involves—
making a healthcare decision; or
appointing a healthcare professional under paragraph (b); but
the Minister may appoint an appropriately qualified healthcare professional to make a healthcare decision in relation to the application.
In this section—
deal, with an access application, includes deal with an application for internal review in relation to the access application.
Examples of dealing with an application for internal review—
making a new decision under section 80(2)
giving notice under section 83(3)
healthcare decision see section 30.
Division 2 Preliminary contact with applicant
Application outside scope of Act
This section applies if—
a person purports to make an application under this Act to an entity for access to a document; and
the entity decides the application is outside the scope of this Act for 1 or more of the following reasons—
the document is a document to which this Act does not apply;
the entity is an entity to which this Act does not apply;
the application is made to the information commissioner, RTI commissioner or privacy commissioner.
Within 10 business days after the purported application is received, the entity must give prescribed written notice to the applicant of the decision.
Noncompliance with application requirement
This section applies if—
a person purports to make an access application for a document to an agency or Minister; and
the application does not comply with all relevant application requirements.
The agency or Minister must make reasonable efforts to contact the person within 15 business days after the purported application is received and inform the person how the application does not comply with a relevant application requirement.
An agency or Minister must not refuse to deal with an application because it does not comply with all relevant application requirements without first giving the applicant a reasonable opportunity to consult with a view to making an application in a form complying with all relevant application requirements.
The applicant is taken to have made an application under this Act if and when the application is made in a form complying with all relevant application requirements.
If, after giving the opportunity mentioned in subsection (3) and any consultation, an agency or Minister decides the application does not comply with all relevant application
requirements, the agency or Minister must, within 10 business days after making the decision, give the applicant prescribed written notice of the decision.
In this section—
relevant application requirement, for an access application, means a matter set out in section 24(2) or (3) that is required for the application.
Application for personal information
This section applies if, on its face, an access application made under this Act could have been made under the Information Privacy Act because the application is for access to a document to the extent it contains the applicant’s personal information.
The agency or Minister must, within 15 business days after the application is received, inform the applicant that—
the application could have been made under the Information Privacy Act without any application fee or processing charge being payable; and
the applicant may either—
ask for the application to be dealt with under the Information Privacy Act; or
confirm the application as an application under this Act.
If the applicant asks for the application to be dealt with under the Information Privacy Act—
the applicant is taken to have made the application under the Information Privacy Act on the date of the request; and
any application fee paid by the applicant must be refunded as soon as practicable.
However, the application continues to be dealt with as an application under this Act if—
the applicant confirms the application as an application under this Act; or
the applicant does not, within a reasonable time, either make the request, or give the confirmation, mentioned in subsection (2)(b).
Longer processing period
At any time before a deemed decision is taken to have been made in relation to an access application, the agency or Minister may ask the applicant for a further specified period to consider the application.
Additional requests for further specified periods may be made under subsection (1).
The agency or Minister may continue to consider the application and make a considered decision in relation to it only if—
the agency or Minister has asked the applicant for a further specified period under subsection (1); and
the applicant has not refused the request; and
the agency or Minister has not received notice that the applicant has applied for review under this Act.
If a considered decision is made, the considered decision replaces any deemed decision for the purposes of this Act.
Note—
The agency or Minister must give prescribed written notice of the considered decision and the considered decision is potentially subject to review under this Act.
Schedule of relevant documents and charges estimate notice
If a person makes an access application to an agency or Minister, the agency or Minister must—
consider whether a processing charge or access charge is payable in relation to the application; and
before the end of the processing period for the application, give the applicant—
a schedule of relevant documents for the applicant unless the applicant waives the requirement; and
a charges estimate notice.
After receiving a charges estimate notice, the applicant may consult with the agency or Minister with a view to narrowing the application to reduce the applicable charges.
If the applicant does not confirm, narrow or withdraw the access application within the prescribed period, the applicant is taken to have withdrawn the applicant’s application at the end of the prescribed period.
If the applicant narrows the access application within the prescribed period, the agency or Minister must, before the end of the processing period for the application, give the applicant a new charges estimate notice.
No more than 2 charges estimate notices may be given in relation to an access application.
Also, subsections (2) to (4) do not apply if a decision is made, under part 6, division 3, to waive charges.
In this section—
charges estimate notice, for an access application, means a written notice stating the following details—
if a request has been made to an agency or Minister for waiver of charges—the agency’s or Minister’s decision on whether charges will be waived under part 6, division 3;
the agency’s or Minister’s estimate of the amount of any processing charge or access charge;
the basis on which the estimate is made;
the day the decision was made;
the name and designation of the person making the decision;
the effect of subsections (2) and (3);
any rights of review under this Act in relation to the decision, the procedures to be followed for exercising the rights and the time within which an application for review must be made.
prescribed period—
The prescribed period is 20 business days from the date of the charges estimate notice or any longer period agreed under paragraph 2.
The applicant and the agency or Minister may agree to extend the prescribed period.
schedule of relevant documents—
For an access application, a schedule of relevant documents is a schedule that—
sets out and gives a brief description of the classes of documents relevant to the application in the possession, or under the control, of the agency or Minister; and
sets out the number of documents in each class.
However, an agency or Minister is not required to include any exempt information or contrary to public interest information in the schedule.
Division 3 Contact with relevant third party
Disclosure of concern to third party
An agency or Minister may give access to a document that contains information the disclosure of which may reasonably be expected to be of concern to a government, agency or person (the relevant third party) only if the agency or Minister has taken the steps that are reasonably practicable—
to obtain the views of the relevant third party about whether—
the document is a document to which this Act does not apply; or
the information is exempt information or contrary to public interest information; and
to inform the relevant third party that if access is given to the document because of an access application, access may also be given to the document under a disclosure log.
If disclosure of information may reasonably be expected to be of concern to a person but for the fact that the person is deceased, subsection (1) applies as if the person’s representative were a relevant third party.
If—
the agency or Minister obtains the views of the relevant third party and the relevant third party considers—
the document is a document to which this Act does not apply; or
the information is exempt information or contrary to public interest information; but
the agency or Minister decides—
the document is a document to which this Act does apply; or
the information is not exempt information or contrary to public interest information;
the agency or Minister must—
give prescribed written notice of the decision of the agency or Minister to the applicant and the relevant third party; and
defer giving access to the document until after—
the agency or Minister is given written notice by the relevant third party that it does not intend to make any application for review under this Act; or
if notice is not given under subparagraph (i) and no application for review under this Act is made by the end of the review period—the end of the review period; or
if an application for review under this Act is made by the end of the review period—the review has ended (whether because of an informal resolution or because of a decision of the entity conducting the review).
The agency or Minister must give the applicant written notice when access is no longer deferred under subsection (3)(d).
In this section—
representative, in relation to a deceased person, means the deceased person’s eligible family member, or, if 2 or more persons qualify as the deceased person’s eligible family member, 1 of those persons.
review period means the period within which any application for review under this Act may be made.
Division 4 Transfers
Transfer of application
In this section—
agency includes a Minister.
An agency to which an application has been made (the original agency) may transfer the application to another agency if—
the document to which the application relates is not in the original agency’s possession but is, to the original agency’s knowledge, in the other agency’s possession; and
the other agency consents to the transfer.
An application that is transferred from 1 agency to another agency is taken to have been made to the other agency.
If—
an application is made to an agency for access to more than 1 document; and
1 or more of the documents is a document mentioned in subsection (2)(a);
this section (other than subsections (5) and (6)) applies to each of the documents as if separate applications had been made to the agency for each of the documents.
If part of an application is transferred under this section and the transferred part of the application relates to a document that is not personal information for the applicant, a separate application fee is payable for the transferred part of the application.
However, if the part of the application which is not transferred under this section relates only to a document that is personal information for the applicant, subsection (5) applies only to the extent that there is a transfer to more than 1 agency.
Part 4 Refusal to deal with application
Pro-disclosure bias in deciding to deal with applications
It is the Parliament’s intention that if an access application is made to an agency or Minister, the agency or Minister should deal with the application unless this would, on balance, be contrary to the public interest.
Sections 40, 41 and 43 state the only circumstances in which the Parliament considers it would, on balance, be contrary to the public interest to deal with an access application.
However, it is the Parliament’s intention that this Act should be administered with a pro-disclosure bias and an agency or
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Minister may deal with an access application even if this Act provides that the agency or Minister may refuse to deal with the application.
Exempt information
This section applies if—
an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and
it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information.
The agency or Minister may refuse to deal with the application without having identified any or all of the documents.
Effect on agency’s or Minister’s functions
An agency or Minister may refuse to deal with an access application or, if the agency or Minister is considering 2 or more access applications by the applicant, all the applications, if the agency or Minister considers the work involved in dealing with the application or all the applications would, if carried out—
substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or
interfere substantially and unreasonably with the performance by the Minister of the Minister’s functions.
Without limiting the matters to which the agency or Minister may have regard in making a decision under subsection (1), the agency or Minister must have regard to the resources that would have to be used—
in identifying, locating or collating any documents in the filing system of the agency or the Minister’s office; or
in deciding whether to give, refuse or defer access to any documents, or to give access to edited copies of any documents, including resources that would have to be used—
in examining any documents; or
in consulting in relation to the application with a relevant third party under section 37; or
in making a copy, or edited copy, of any documents; or
in notifying any final decision on the application.
In deciding whether to refuse, under subsection (1), to deal with an access application, an agency or Minister must not have regard to—
any reasons the applicant gives for applying for access; or
the agency’s or Minister’s belief about what are the applicant’s reasons for applying for access.
Prerequisites before refusal because of effect on functions
An agency or Minister may refuse to deal with an access application under section 41 only if—
the agency or Minister has given the applicant a written notice—
stating an intention to refuse to deal with the application; and
advising that, for the prescribed consultation period for the notice, the applicant may consult with the agency or Minister with a view to making an application in a form that would remove the ground for refusal; and
stating the effect of subsections (2) to (6); and
the agency or Minister has given the applicant a reasonable opportunity to consult with the agency or Minister; and
the agency or Minister has, as far as is reasonably practicable, given the applicant any information that would help the making of an application in a form that would remove the ground for refusal.
Following any consultation, the applicant may give the agency or Minister written notice either confirming or narrowing the application.
If the application is narrowed, section 41 applies in relation to the changed application but this section does not apply to it.
If the applicant fails to consult after being given notice under subsection (1), the applicant is taken to have withdrawn the application at the end of the prescribed consultation period.
Without limiting subsection (4), the applicant is taken to have failed to consult if, by the end of the prescribed consultation period, the applicant has not given the named officer or member written notice under subsection (2).
In this section—
prescribed consultation period, for a written notice under subsection (1)(a), means—
the period of 10 business days after the date of the notice; or
the longer period agreed by the agency or Minister and the applicant whether before or after the end of the 10 business days mentioned in paragraph (a).
Previous application for same documents
This section applies if—
an applicant makes an access application, whether under this Act or the Information Privacy Act, to an agency or Minister (the first application); and
the applicant makes another access application under this Act (the later application) to the same agency or Minister for access to 1 or more of the same documents sought under the first application and the later application does not, on its face, disclose any reasonable basis for again seeking access to the document or documents.
For subsection (1)(a)—
the first application, if made under this Act—
does not include an access application taken to have been withdrawn under section 36(3) or 42(4); and
if an access application has been narrowed under section 36 or 42—means only the access application as changed; and
the first application, if made under the Information Privacy Act—
does not include an access application taken to have been withdrawn under section 61(4) of that Act; and
if an access application has been narrowed under section 61 of that Act—means only the access application as changed.
The agency or Minister may refuse to deal with the later application to the extent it is for access to a document or documents sought under the first application if—
when the later application was made, the agency or Minister had not decided the first application; or
in relation to the first application, if made under this Act—
the applicant had been given notice under section 54 that access was to be given to the document sought or to some or all of the documents sought; or
the agency or Minister had decided that the application was for a document to which this Act does not apply; or
the agency or Minister had decided the document or documents sought were documents access to which was refused under section 47; or
the agency or Minister had refused to deal with it under this part; or
in relation to the first application, if made under the Information Privacy Act—
the applicant had been given notice under section 68 of that Act that access was to be given to the document sought or to some or all the documents sought; or
the agency or Minister had decided that the application was for a document to which chapter 3 of that Act does not apply; or
the agency or Minister had decided the document or documents sought were documents access to which was refused under section 67 of that Act; or
the agency or Minister had refused to deal with it under chapter 3, part 4 of that Act; or
the agency’s or Minister’s decision on the first application—
is the subject of a review and the review is not complete; or
has been the subject of a completed review (other than an internal review).
For subsection (3), if a document sought under the later application is merely a record of the first application having
been made (a record document), access to a record document is taken to have been sought under the first application.
For subsection (3)(d)— review means—
an internal review under this Act or the Information Privacy Act; or
an external review under this Act or the Information Privacy Act; or
a proceeding under part 11 or under the Information Privacy Act, chapter 3, part 11.
̀⠀ ⤀Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ ꤀ Ā Ā Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ Ā ᜀ For subsection (3)(d), a review is complete if the review has ended because of an informal resolution or because of a decision of the entity conducting the review.
Part 5 Decision
Pro-disclosure bias in deciding access to documents
It is the Parliament’s intention that if an access application is made to an agency or Minister for a document, the agency or Minister should decide to give access to the document unless giving access would, on balance, be contrary to the public interest.
The purpose of this part is to help the agency or Minister decide whether giving access would, on balance, be contrary to the public interest by—
setting out in schedule 3 types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest; and
setting out in section 49 the steps, and, in schedule 4, factors, for deciding, for other types of information,
whether disclosure would, on balance, be contrary to the public interest.
Also, sections 50 and 51 set out circumstances concerning information about a child and personal healthcare information about an applicant in which the Parliament has stated its intention about what is in the best interests of the child and applicant.
However, it is the Parliament’s intention that this Act should be administered with a pro-disclosure bias and an agency or Minister may give access to a document even if this Act provides that access to the document may be refused.
45 Considered decision on access application
If a person makes an access application for a document to an agency or Minister, the agency or Minister must—
after considering the application, make a decision (a considered decision)—
whether access is to be given to the document; and
if access is to be given—whether any charge must be paid before access is given; and
give the person written notice of the decision under section 54.
Deemed decision on access application
If an applicant is not given written notice of the decision by the end of the processing period for an access application for a document—
on the last day of the processing period the principal officer of the agency or the Minister is taken to have made a decision (a deemed decision) refusing access to the document; and
the application fee must be refunded as soon as practicable after the end of the processing period.
As soon as practicable after a deemed decision is taken to have been made, the principal officer or Minister must give prescribed written notice of the decision to the applicant.
Grounds on which access may be refused
This section sets out grounds on which access may be refused.
It is the Parliament’s intention that—
the grounds are to be interpreted narrowly; and
an agency or Minister may give access to a document even if a ground on which access may be refused applies.
On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister—
to the extent the document comprises exempt information under section 48; or
to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; or
to the extent the document is sought under an application by or for a child and comprises the child’s personal information the disclosure of which would not be in the child’s best interests under section 50; or
to the extent the document comprises an applicant’s relevant healthcare information the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51; or
because the document is nonexistent or unlocatable as mentioned in section 52; or
because other access to the document is available as mentioned in section 53.
Note—
Only a principal officer, Minister or appointed healthcare professional may refuse access to a document of an agency as mentioned in paragraph (d)—see sections 30(5) and 31(2).
In this section—
child means an individual who is under 18 years.
Exempt information
If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest.
However, despite an agency or Minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access.
In this Act—
exempt information means the information that is exempt information under schedule 3.
Contrary to public interest
If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
This section sets out the steps, and, in schedule 4, factors, the Parliament considers appropriate for deciding, for types of information (other than exempt information), whether disclosure would, on balance, be contrary to the public interest.
If it is relevant for an agency or Minister to consider whether, on balance, disclosure of information would be contrary to the
public interest, the agency or Minister must undertake the following steps—
identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including any factor mentioned in schedule 4, part 1 that applies in relation to the information (an irrelevant factor);
identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including any factor mentioned in schedule 4, part 2;
identify any factor favouring nondisclosure that applies in relation to the information (a relevant factor favouring nondisclosure), including any factor mentioned in schedule 4, part 3 or 4;
disregard any irrelevant factor;
having regard to subsection (4), balance any relevant factor or factors favouring disclosure against any relevant factor or factors favouring nondisclosure;
decide whether, on balance, disclosure of the information would be contrary to the public interest;
unless, on balance, disclosure of the information would be contrary to the public interest, allow access to the information subject to this Act.
The factors mentioned in schedule 4, part 4 are factors where disclosure could reasonably be expected to cause a public interest harm (harm factors) but the fact that 1 or more of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that, on balance, disclosure of the information would be contrary to the public interest.
However, despite an agency or Minister being able, under section 47(3)(b), to refuse access to all or part of a document, the agency or Minister may decide to give access.
Contrary to child’s best interests
If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
Despite schedule 3, section 12(2) and schedule 4, part 2, item 8, in relation to an application by or for a child for access to a document, the Parliament considers it would, on balance, be contrary to the public interest to give access to the document to the extent it comprises personal information of the child if the disclosure of the information would not be in the child’s best interests.
In considering whether disclosure of the information would not be in the best interests of the child, the agency or Minister must, unless the access application was made for the child, have regard to whether the child has the capacity to—
understand the information and the context in which it was recorded; and
make a mature judgment as to what might be in his or her best interests.
However, despite an agency or Minister being able, under section 47(3)(c), to refuse access to all or part of a document, the agency or Minister may decide to give access.
In this section—
child means an individual who is under 18 years.
Contrary to applicant’s best interests—healthcare information
If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.
Despite schedule 3, section 12(2) and schedule 4, part 2, item 7, the Parliament considers it would, on balance, be contrary to the public interest to give access to a document to the extent
it comprises relevant healthcare information of the applicant if the disclosure of the information might be prejudicial to the physical or mental health or wellbeing of the applicant.
Note—
Only a principal officer, Minister or appointed healthcare professional may decide whether disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant—see sections 30(5) and 31(2).
However, despite an agency or Minister being able, under section 47(3)(d), to refuse access to all or part of a document, the agency or the Minister may decide to give access.
Notes—
Only a principal officer, Minister or appointed healthcare professional may decide to give access under subsection (3)—see sections 30(5) and 31(2).
Also, relevant healthcare information to which access is refused may ultimately be disclosed to the applicant by the applicant’s nominated healthcare professional under section 77.
Document nonexistent or unlocatable
For section 47(3)(e), a document is nonexistent or unlocatable if—
the agency or Minister dealing with the application for access is satisfied the document does not exist; or
Example—
a document that has not been created
the agency or Minister dealing with the application for access is satisfied—
the document has been or should be in the agency’s or Minister’s possession; and
all reasonable steps have been taken to find the document but the document can not be found.
Examples—
a document that has been lost
a document that has been disposed of under an authority given by the State Archivist
Note—
Under the Public Records Act 2002, section 13, it is an offence to dispose of a public record without authority.
Before an agency or Minister may be satisfied under subsection (1)(a) that a prescribed document does not exist, a search for the document from a backup system is required, but only if the agency or Minister considers the document has been kept in, and is retrievable from, the backup system.
Subject to subsection (2), a search for a document from a backup system is not required before the document is nonexistent or unlocatable for section 47(3)(e).
In this section—
prescribed document means a document that—
is a document required to be kept under the Public Records Act 2002; and
is not a document that the agency or Minister could lawfully have disposed of under the Public Records Act 2002.
53 Other access available
For section 47(3)(f), other access is available to a document if—
the applicant can reasonably access the document under another Act, or under arrangements made by an agency, whether or not the access is subject to a fee or charge; or
Note—
A document mentioned in an agency’s disclosure log is a document an applicant can reasonably get access to under arrangements made by the agency.
the document is reasonably available for public inspection under the Public Records Act 2002 or in a public library; or
the document—
is stored for preservation or safe custody in the Queensland State Archives; and
is a copy of a document of an agency; or
the document is commercially available.
Notification of decision and reasons
An agency or Minister must give a prescribed written notice to an applicant for an access application of—
the decision on the application, including a decision to refuse to deal with the application; and
if the application relates to a document that is not a document in the possession, or under the control, of the agency or Minister—the fact that the document is not a document in the possession, or under the control, of the agency or Minister.
In addition to the details that must be stated in a prescribed written notice, the notice must also specify the following—
if access to a document is to be given—
an itemisation of any processing and access charges payable by the applicant; and
the period within which the applicant may access the document under section 69 (the access period); and
details of the publication of the document, or of information about the document, that is required or permitted by section 78 or 78A, if the applicant accesses the document within the access period and the document does not contain personal information of the applicant; and
details of the publication of the document, or of information about the document, that is required or permitted by section 78 or 78A, if the applicant
fails to access the document within the access period and the document does not contain personal information of the applicant;
if access is to be given to a copy of a document subject to the deletion under section 73 of irrelevant information—the fact that the document is such a copy;
if access is to be given to a copy of a document subject to the deletion under section 74 of exempt information—
the fact that the document is such a copy; and
the provision of schedule 3 under which the information is exempt information; and
the reasons for the decision classifying the information as exempt information;
if access is to be given to a copy of a document subject to the deletion under section 75 of contrary to public interest information—
the fact that the document is such a copy; and
the factors identified as favouring disclosure and the factors identified as favouring nondisclosure under section 49; and
the reasons for the decision that, on balance, disclosure would be contrary to the public interest under section 49;
if access to a document is to be given subject to deferral under section 72—
the reason for the deferral; and
the day on which the agency or Minister expects the document to be presented or released as mentioned in section 72;
if dealing with the access application is refused under section 40—
the provision of schedule 3 under which the information in the document is exempt information; and
the reasons for the decision classifying the information as exempt information;
if access to a document is refused under section 47(3)—
the processing charges payable by the applicant; and
the provision of section 47(3) under which access is refused; and
if access is refused under section 47(3)(a)—
the provision of schedule 3 under which the information in the document is exempt information; and
the reasons for the decision classifying the information as exempt information; and
if access is refused under section 47(3)(b)—
the factors identified as favouring disclosure and the factors identified as favouring nondisclosure under section 49; and
the reasons for the decision that, on balance, disclosure would be contrary to the public interest under section 49; and
if access is refused under section 47(3)(c)—the reason under section 50 the agency or Minister considers access would not be in the best interests of the child; and
if access is refused under section 47(3)(d)—the reason under section 51 the agency or Minister considers that the disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant; and
if access is refused under section 47(3)(e)—the provision of section 52(1) under which the document is nonexistent or unlocatable; and
(viii)if access is refused under section 47(3)(f)—the type of access to the document under section 53 that is available.
An agency or Minister is not required to include any exempt information or contrary to public interest information in the notice.
Subsection (2)(a)(ii) does not apply if the document is given with the notice.
This section does not apply in relation to a deemed decision.
Information as to existence of particular documents
Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information.
For an access application for a document containing prescribed information, the agency or Minister may give a prescribed written notice that does not include the details mentioned in section 191(a) or (b) but, by way of a decision, states that—
the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or a document of the Minister; but
assuming the existence of the document, it would be a document to which access would be refused under section 47(3) to the extent it comprised prescribed information.
The prescribed written notice may be given in a schedule of relevant documents.
To avoid any doubt, it is declared that a decision that states the matters mentioned in subsection (2) is a decision refusing access to a document under section 47.
Note—
A decision refusing access to a document under section 47 is a reviewable decision—see schedule 6, definition reviewable decision, paragraph (e).
Part 6 Charging regime
Division 1 Preliminary
56 Meaning of processing charge
In this Act, processing charge, in relation to an access application for a document, means the charge prescribed under a regulation for—
searching for or retrieving the document; and
making, or doing things related to making, a decision on the application.
57 Meaning of access charge
In this Act, access charge, in relation to an access application for a document, means the charge prescribed under a regulation in relation to giving access to the document.
58 Duty in relation to processing charge and access charge
It is the duty of the agency or Minister to minimise any charges payable by an applicant.
59 No processing charge for personal information
To remove any doubt, it is declared that no processing charge is payable in relation to a document to the extent the
document contains information that is personal information for the applicant.
Division 2 Payment of charges
Requirement to pay charges
Before an applicant for an access application for a document is given access to the document, the applicant must pay the applicable processing charge and access charge for the application.
An applicant for an access application for a document must pay the applicable processing charge for the application even if—
access to the document is refused under this Act; or
the applicant does not seek to access the document within the access period mentioned in section 69 after a decision is made to give access.
Amount of charges
The amount payable for the processing charge for an access application may not be more than the estimated processing charge set out in the final charges estimate notice for the application.
The amount payable for the access charge for an access application may not be more than the estimated access charge set out in the final charges estimate notice for the application.
Note—
Also, if an applicant is given access to a document in a form different to the form of access requested by the applicant, the applicant must not be required to pay a charge that is more than the charge that would have been payable if access had been given in the form requested by the applicant—see section 68(5).
Page 56 Current as at 1 July 2016
62 Refund of excess payment
If an applicant pays an agency or Minister an amount for the processing charge and access charge that is more than the amount of the processing charge and access charge ultimately payable under this Act, the agency or Minister must refund the difference to the applicant.
Division 3 Waiver of charges
63 Waiver under div 3 only
A processing charge or access charge may be waived only under this division.
Uneconomical to charge
A processing charge, or access charge, for an access application may be waived if the agency or Minister considers the likely associated costs to the agency or Minister would be more than the likely amount of the charge.
In this section—
associated costs mean the costs of—
estimating and otherwise complying with this Act in relation to the charge; and
receiving payment of the charge.
Agency or Minister has delayed
A processing charge may be waived under section 93(2).
Applicant under financial hardship
This section applies if, at any time, an applicant makes a written request to an agency or Minister that the applicable processing charge or access charge for the application be waived.
The agency or Minister must decide to waive any processing charge, or access charge, for the application if—
for an applicant who is an individual—
the request is accompanied by a copy of a concession card; and
the agency or Minister considers the applicant is the holder of a concession card; and
the agency or Minister considers the applicant is not making the application for some other person who is seeking to avoid the payment of a charge; or
for an applicant that is a non-profit organisation—there is in effect a decision of the information commissioner that the non-profit organisation has financial hardship status under section 67.
The agency or Minister must give the applicant a prescribed written notice of a decision under subsection (2) before the end of the processing period.
However, subsection (3) does not apply if the agency or Minister has given the applicant a charges estimate notice that includes a decision that charges are not to be waived.
In this section—
concession card means a health care card or pensioner concession card under the Social Security Act 1991 (Cwlth) or a pensioner concession card issued by the department of the Commonwealth in which the Veterans’ Entitlements Act 1986
(Cwlth) is administered.
holder, of a concession card, at a time the concession card is being relied on for a purpose under this Act, means a person who is named on the concession card and would be qualified to be named on the concession card if the concession card were issued at the time the concession card is being relied on.
Financial hardship status for non-profit organisation
The information commissioner may, on written application by a non-profit organisation, decide whether a non-profit organisation has financial hardship status by considering the nature and size of the organisation’s funding base and the amount of the organisation’s liquid funds.
Example—
The fact an organisation receives significant government funding may indicate its finances are strictly limited.
The commissioner must give a non-profit organisation that has applied for financial hardship status prescribed written notice of the decision.
The commissioner’s decision that a non-profit organisation has financial hardship status has effect for 1 year from the date of the decision.
While there is in effect a decision that a non-profit organisation has financial hardship status—
the non-profit organisation must give the commissioner written notice of any substantial improvement in the organisation’s financial circumstances as soon as practicable after the improvement happens; and
the commissioner may revoke the decision if the commissioner considers that the non-profit organisation’s financial circumstances at any time result in the commissioner considering that the organisation should not have financial hardship status.
If the commissioner revokes a decision that a non-profit organisation has financial hardship status, the commissioner must, as soon as practicable, give the organisation prescribed written notice of the revocation.
If an organisation that has made an access application to an agency or Minister receives a notice under subsection (5) during the processing period for the application, the organisation must immediately advise the agency or Minister that the decision that the organisation has financial hardship status has been revoked.
If the commissioner gives a non-profit organisation written notice of a decision that it is not to be given financial hardship status, the non-profit organisation may not make another application for a decision under subsection (1) unless—
there is a substantial deterioration in its financial circumstances; or
it is more than 1 year since the date of the commissioner’s decision.