Ashurst: Queensland: Thursday, March 27, 2025.
What you need to know
The RTI Act gives people the right to access documents of an agency1 and to amend their personal information contained in documents of an agency, subject to some exceptions and limitations.
Some limited changes to the RTI Act commenced on 1 March 2024. The remainder are expected to commence on 1 July 2025. The Office of the Information Commissioner (OICQ) has published the IPOLA Guidelines to help agencies prepare for the commencement of the changes to the RTI Act.
This is Part 2 of our article series on the headline changes to the RTI Act with a focus on decisions, review rights and public disclosure requirements for agencies. Part 1 of the series focussed on operational, governance and administrative changes for receiving and assessing RTI applications and can be located here.
Summary of review rights under the RTI Act
As a reminder, the rights of review afforded to persons under the RTI Act are in relation to decisions made about their applications that are reviewable decisions as set out in Schedule 4A. There are two types of reviewable decisions, those which relate to access applications, and those which relate to amendment applications as a preliminary step, agencies should determine if the decision in question is a reviewable decision. If it is not a reviewable decision then a request for review will not be valid.
Under the RTI Act there are two main types of review avenues for reviewable decisions. Internal review is a review completed by the agency that made the reviewable decision and an external review is a review by the OICQ of that reviewable decision.
Internal review
Under the RTI Act, applicants have the right to apply to an agency for internal review of a reviewable decision made on their access or amendment application.
The internal review processing period will still initially be 20 business days from the valid application date. However, there are now circumstances that allow for an extension of that period, including where consultation is required with a concerned third party prior to a refusal to deal with an application (10 business days), where the applicant provides only a postal address for written notices (5 business days), or where an extension is otherwise requested and agreed between the agency and applicant. The granting of an extension can be denied by either the applicant refusing the request, or the applicant applying for an external review after the end of the current internal review processing period.
Agencies should note these additional timeframes allow for more flexibility in the decision timelines, as the limits on the length of any extended period are less strict. However, it will be important to consult with the applicant should an extension be needed and to ensure that it is reasonable and appropriate for the RTI request.
By the end of the internal review processing period, written notice of the internal review decision must be given to the applicant.
Search issues and referral during external review
The RTI Act allows for external review by the OICQ of a decision on an access or amendment application that has been made by an agency.
The following reviewable decisions for access applications can raise search issues:
The IPOLA Guidelines provide that in the case of an external review of a relevant reviewable decision to assess the sufficiency of an agency’s searches, the OICQ may request agency submissions, a record of the agency's searches and signed certification forms which set out:
Additionally, there is a new right for the OICQ to give a relevant third party (where the document may be of concern to that third party) access to a document that is the subject of external review. The purpose of providing such access is to obtain the third party's views about whether the document is one to which the RTI Act does not apply, if the information is exempt information or whether its disclosure is contrary to the public interest information.
Agencies should be aware of this new ground for review and ensure that detailed paper trails are kept of searches that have been undertaken in the event that a decision is reviewed on the basis of sufficiency of searches, or if the OICQ asks for submissions.
Judicial function decisions
A judicial function decision is a decision under section 32(1)(b) or 78J(1)(b) of the RTI Act that all or part of an application is outside the scope of the RTI Act because it involves entities to which the RTI Act does not apply. The list of excluded judicial entities is included at Schedule 2, Part 2, items 1-8 of the RTI Act and notably includes entities such as courts and tribunals.
The IPOLA amendments mean that judicial function decisions are now excluded from the definition of reviewable decisions, meaning they can no longer be internally or externally reviewed. They can still be appealed straight to the Queensland Civil and Administrative Tribunal (QCAT).
If an agency was to make a reviewable decision and a judicial function decision on the same application, the applicant will be able to apply for review of the reviewable decision and appeal the judicial function decision to QCAT.
For completeness, there are other excluded entities from the RTI Act listed in Schedule 2, which includes some Government Owned Corporations performing their functions. Decisions made by those entities are subject to the ordinary process regarding reviewable decisions.
Publication scheme for proactive disclosure
Proactive disclosure occurs where an agency proactively releases information without being asked for it, for example by publishing datasets on its website. Proactive disclosure helps to share information with communities more efficiently by removing the need for members of the public having to ask the agency for the disclosed information. Publication schemes are forms of proactive disclosure that are mandated by the RTI Act and are being amended as part of the reforms.
Agencies are currently required to have publication schemes, which is a collection of information that must be published on an agency's website, unless doing so is not reasonably practicable.
As part of the new requirements, an agency publication scheme will now need to include:
the agency's structure and functions and how the agency's functions affect members of the public;
- Queensland’s privacy law reforms take effect on 1 July 2025, which include changes to RTI requests for Queensland Government agencies.
- There are a number of procedural changes for review rights that affect both internal and external reviews.
- There have also been amendments to the public disclosure requirements for agencies, with changes to disclosure logs and the proactive disclosure scheme.
- Take steps to prepare for the commencement of changes to the RTI Act by reviewing current RTI policies.
- Keep detailed paper trails of searches in the event that a decision is reviewed on the basis of sufficiency of searches.
- Ensure the agency website is displaying a compliant publication scheme and disclosure logs prior to the commencement of the reforms.
The RTI Act gives people the right to access documents of an agency1 and to amend their personal information contained in documents of an agency, subject to some exceptions and limitations.
Some limited changes to the RTI Act commenced on 1 March 2024. The remainder are expected to commence on 1 July 2025. The Office of the Information Commissioner (OICQ) has published the IPOLA Guidelines to help agencies prepare for the commencement of the changes to the RTI Act.
This is Part 2 of our article series on the headline changes to the RTI Act with a focus on decisions, review rights and public disclosure requirements for agencies. Part 1 of the series focussed on operational, governance and administrative changes for receiving and assessing RTI applications and can be located here.
Summary of review rights under the RTI Act
As a reminder, the rights of review afforded to persons under the RTI Act are in relation to decisions made about their applications that are reviewable decisions as set out in Schedule 4A. There are two types of reviewable decisions, those which relate to access applications, and those which relate to amendment applications as a preliminary step, agencies should determine if the decision in question is a reviewable decision. If it is not a reviewable decision then a request for review will not be valid.
Under the RTI Act there are two main types of review avenues for reviewable decisions. Internal review is a review completed by the agency that made the reviewable decision and an external review is a review by the OICQ of that reviewable decision.
Internal review
Under the RTI Act, applicants have the right to apply to an agency for internal review of a reviewable decision made on their access or amendment application.
The internal review processing period will still initially be 20 business days from the valid application date. However, there are now circumstances that allow for an extension of that period, including where consultation is required with a concerned third party prior to a refusal to deal with an application (10 business days), where the applicant provides only a postal address for written notices (5 business days), or where an extension is otherwise requested and agreed between the agency and applicant. The granting of an extension can be denied by either the applicant refusing the request, or the applicant applying for an external review after the end of the current internal review processing period.
Agencies should note these additional timeframes allow for more flexibility in the decision timelines, as the limits on the length of any extended period are less strict. However, it will be important to consult with the applicant should an extension be needed and to ensure that it is reasonable and appropriate for the RTI request.
By the end of the internal review processing period, written notice of the internal review decision must be given to the applicant.
Search issues and referral during external review
The RTI Act allows for external review by the OICQ of a decision on an access or amendment application that has been made by an agency.
The following reviewable decisions for access applications can raise search issues:
- a decision on giving access to documents that purports to, but may not, cover all documents subject of an application (Schedule 4A, item 1(h)); and
- a decision to refuse access to all or part of a document because a document is non-existent or unlocatable (Schedule 4A, item 1(e), sections 47(3)(e) and 52).
The IPOLA Guidelines provide that in the case of an external review of a relevant reviewable decision to assess the sufficiency of an agency’s searches, the OICQ may request agency submissions, a record of the agency's searches and signed certification forms which set out:
- the locations which were searched;
- the reasons those locations were chosen (including references to relevant record keeping policies and practices);
- the search terms used in searching any electronic databases; and
- any explanation of why the documents do not exist or cannot be located.
Additionally, there is a new right for the OICQ to give a relevant third party (where the document may be of concern to that third party) access to a document that is the subject of external review. The purpose of providing such access is to obtain the third party's views about whether the document is one to which the RTI Act does not apply, if the information is exempt information or whether its disclosure is contrary to the public interest information.
Agencies should be aware of this new ground for review and ensure that detailed paper trails are kept of searches that have been undertaken in the event that a decision is reviewed on the basis of sufficiency of searches, or if the OICQ asks for submissions.
Judicial function decisions
A judicial function decision is a decision under section 32(1)(b) or 78J(1)(b) of the RTI Act that all or part of an application is outside the scope of the RTI Act because it involves entities to which the RTI Act does not apply. The list of excluded judicial entities is included at Schedule 2, Part 2, items 1-8 of the RTI Act and notably includes entities such as courts and tribunals.
The IPOLA amendments mean that judicial function decisions are now excluded from the definition of reviewable decisions, meaning they can no longer be internally or externally reviewed. They can still be appealed straight to the Queensland Civil and Administrative Tribunal (QCAT).
If an agency was to make a reviewable decision and a judicial function decision on the same application, the applicant will be able to apply for review of the reviewable decision and appeal the judicial function decision to QCAT.
For completeness, there are other excluded entities from the RTI Act listed in Schedule 2, which includes some Government Owned Corporations performing their functions. Decisions made by those entities are subject to the ordinary process regarding reviewable decisions.
Publication scheme for proactive disclosure
Proactive disclosure occurs where an agency proactively releases information without being asked for it, for example by publishing datasets on its website. Proactive disclosure helps to share information with communities more efficiently by removing the need for members of the public having to ask the agency for the disclosed information. Publication schemes are forms of proactive disclosure that are mandated by the RTI Act and are being amended as part of the reforms.
Agencies are currently required to have publication schemes, which is a collection of information that must be published on an agency's website, unless doing so is not reasonably practicable.
As part of the new requirements, an agency publication scheme will now need to include:
the agency's structure and functions and how the agency's functions affect members of the public;
- the agency's structure and functions and how the agency's functions affect members of the public;
- any arrangements that enable members of the public to engage with the agency's functions;
- the types of information held by the agency;
- the types of information the agency makes publicly available and how that information is made available;
- procedures for asking for information, such as any fee or charge that may be payable; and
- any additional information required by regulation.
Disclosure logs
There will be amendments to the requirements regarding disclosure logs so that all agencies (except for prescribed entities that are excluded) are subject to the same requirements.
The RTI Act requires agencies to include any documents released in response to an RTI application on a disclosure log (subject to redaction requirements including where there is personal information). Disclosure logs are intended to prevent multiple applications on the same subject and increase the flow of information to the community.
Previously Departments and Ministers had slightly different obligations regarding disclosure logs including a requirement to include application details and the name of the applicant when an application is received, and a requirement that documents must be included in a disclosure log as soon as practicable after it has been accessed by the applicant.
As a result of the reforms, these differing requirements will be removed and all agencies will be subject to the same requirements with respect to disclosure logs. Additionally, agencies will no longer be required to comply with Ministerial guidelines on the operation of Disclosure Logs as this requirement has been repealed.
Agencies will need to undertake a number of operational and administrative changes. Given the impending 1 July 2025 deadline, agencies should start preparations now so that they will be ready to comply with the new RTI Act requirements when they start.
(Authors: Clare Doneley, Partner and Alex White, Associate.)
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