Right to Information Procedures

Responsibility for Right to Information (RTI) sits with the Office of the Secretary.

RTI delegates within the Office of the Secretary assess RTI applications made to all departmental Outputs excluding some statutory office holders.

A number of Outputs and independent statutory officers associated with the Department of Justice (the Department) are, to the extent explained by section 6 of the Act^[1], excluded from RTI applications:

• a court
• a tribunal
• the Integrity Commission
• a judge
• an associate judge
• a magistrate
• the Solicitor-General
• the Director of Public Prosecutions
• the Ombudsman
• the Custodial Inspector
• the Auditor-General
• the Legal Profession Board of Tasmania
• the Parole Board
• the Anti-Discrimination Commissioner
• the Public Guardian.

If an application is received relating to one of these persons or bodies, consideration needs to be given to whether the information relates to administration. If so, the application should be assessed in accordance with normal procedures.

If the subject matter of the application does not relate to administration, the application should be refused.

An exclusion applies to the Law Society of Tasmania in relation to the performance and exercise of the Society's functions and powers relating to trust accounts, trust monies and disciplinary proceedings and to information in the possession of the Independent Review of Parliamentary Workplace practices and procedures to support workplace culture conducted by the Anti-Discrimination Commissioner, or a person acting for, or on behalf of, the Independent Review.

^[1] This Act does not apply to information in the possession of the following persons or public authorities, or in the possession of a person whose services are provided or procured for the purposes of assisting the person or public authority, unless the information relates to the administration of the relevant public authority.

Under the Act, there are four types of disclosure. The first three types are the best to use, as they promote a system of open and transparent government. The fourth is a method of last resort.

The four disclosure types are:

• Required Disclosure – this is information the Department must release. For example, the Department’s Annual Report must be tabled in Parliament in accordance with the State Service Act 2000. If something is a required disclosure and will be released within the 12 months, it does not have to be released through RTI as the applicant will have another way to get it.
• Routine Disclosure – similar to required disclosure, this is information the Department already releases on a regular basis but does not have to.
• Active Disclosure – is again similar to required and routine, except it is not information that must be released or that is typically released. When information in scope of a request is assessed as appropriate to released publicly, it can simply be sent out.
• Assessed Disclosure – the Act describes this as the ‘method of last resort’. This is the disclosure type where information will require scrutiny and the application of exemptions and redactions in accordance with the Act should be applied as appropriate.

Principal Officer

The principal officer is the Secretary of the Department. The principal officer is unable to assess all the RTI applications for assessed disclosure of information the Department receives.

The Secretary delegates some of their decision-making powers to RTI delegated officers. All delegates are currently located in the Office of the Secretary.

Delegated Officer (RTI delegate)

A delegated officer holds the power and functions of a principal officer to assess an RTI.

The RTI delegate must have access to the inbox rti@justice.tas.gov.au.

The process of RTI essentially follows five key areas:

1. Receiving an application for assessed disclosure of information
2. Retrieving Information
3. Assessing Information
4. Finalising information for release
5. Releasing Information

New applications

Applications are usually received by email to rti@justice.tas.gov.au. Occasionally, they may be received by mail to GPO Box 825, Hobart. Any applications received via post should be scanned and forwarded to rti@justice.tas.gov.au or the hardcopy provided to an RTI delegate as soon as possible.

RTI delegates should review the RTI inbox daily.

Recording of applications

All RTI applications received by the Department must be entered into Content Manager.

A new folder must be created for each new application and be contained in a virtual folder which is established for each financial year.

RTI delegates are responsible for ensuring requests and advice are recorded appropriately in Content Manager. The following naming conventions should be applied to folder creation at a minimum:

Within the Title (Structured Part) –
INFORMATION MANAGEMENT – Right to Information (RTI)

Within the Title (Free Text Part) –
Include who the request is from, the organisation they represent (if relevant), who the request is about (if different) and the topic of the request.

Following the creation of a new folder, RTI delegates must register all documents relevant to the application, including the application itself, supporting documents, information provided by Outputs (both redacted and unredacted), related emails, correspondence and decisions.

Minimum requirements of applications

Each RTI application must reach the minimum requirements as explained by section 13 of the Act. Current regulations prescribe the application must include:

• the name of the applicant
• a postal or email address for the applicant
• contact details where the applicant can be contacted during ordinary business hours
• the general subject matter of the application
• details of the information sought, including all relevant dates and time periods if known by the applicant
• details of efforts undertaken by the applicant to obtain the information sought
• the date on which the application was signed by the applicant
• if the application includes a request for personal information, proof of identity of the applicant.

Recording statistical information

RTI delegates must record all applications and their outcomes in the RTI Tracking and Statistics spreadsheet. This document is used to produce annual statistics for the Department’s Annual Report and the Right to Information Annual Report prepared by the Department covering all public authorities.

The spreadsheet is regularly circulated to the Deputy Secretary, Strategy, Governance and Major Projects and the Director, Office of the Secretary for discussion during scheduled fortnightly meetings.

The reporting period aligns with the financial year and a new spreadsheet must be created, carrying across any outstanding matters – i.e. applications or internal reviews yet to have a decision issued, or open external reviews.

At the end of the reporting period, the spreadsheet must be reviewed to ensure that the statistics have been accurately captured.

The spreadsheets can be found in FOL/22/4711.

Application fee

Section 16 of the Act provides that all applications should be accompanied by an application fee of 25 fee units or a request for the application fee to be waived. The value of a fee unit is updated and published by the Department of Treasury and Finance.

RTI delegates should ensure the Department’s RTI webpages and application form are updated on the website on 1 July each year so that it is compliant with the Treasury fee.

Fee waiver

Section 16 of the Act provides that:

(2) The application fee may be waived if –

(a) the applicant is impecunious; or

(b) the applicant is a Member of Parliament acting in connection with his or her official duty; or

(ba) the applicant is a journalist acting in connection with their professional duties; or

(c) the applicant is able to show that he or she intends to use the information for a purpose that is of general public interest or benefit.

(3) Before an application is accepted by a public authority or a Minister, the application fee must be paid or a decision to waive the fee under subsection (2) must be made.

Sometimes applicants may not pay the prescribed fee or provide inadequate reasons for requesting the fee be waived. In these situations, requesting the fee or asking for adequate reasons to waive the fee must be undertaken prior to assessing the application.

Transfer of application

At times, an applicant may lodge an RTI with the Department despite the subject matter being more closely connected with another public authority. In these cases, the RTI delegate should transfer the application to the relevant Department or public authority in accordance with section 14 of the Act.

The transfer of an application should be undertaken as soon as possible. It may be necessary to send any relevant information to the public authority or Minister which the application is transferred to. However, it is the Department’s standard practice to assess all documentation that it holds. Information which is held by a Minister’s office within the Department’s portfolio responsibilities will ordinarily be provided to the RTI delegate on request to be assessed by an RTI delegate in the Office of the Secretary.

Requests may also be transferred in part where more than one public authority is likely to hold information.

Agency Executive

Once the RTI delegate has recorded and assessed an application for the minimum requirements, consideration should be given to whether it is appropriate to bring the application to the attention of Agency Executive. Such considerations could include whether the application has been received from a Member of Parliament or journalist or whether it relates to a topical issue. If so, a copy should be sent to the Deputy Secretary, Strategy, Governance and Major Projects for noting.

Refusing an RTI Application

An RTI application may be refused on a number of grounds. The most commonly used reasons for refusal include:

Section 9 – Persons not entitled to certain information already otherwise available

A person is not entitled to information that may be inspected by the public in accordance with another Act or information that may be purchased at a reasonable cost in accordance with arrangements made by a public authority.

Section 10 – Electronic information

Applications may be refused if information is stored in an electronic form and the information cannot be produced using the normal computer hardware and software and technical expertise of the public authority and producing it would substantially and unreasonably divert resources.

Section 10 also provides that a person is not entitled to information contained in back-up systems, or information that has been disposed of in compliance with an approved disposal schedule issued under the Archives Act 1983.

Section 17 – Deferment of provision of information

The provision of information may be deferred if a decision has been made before receipt of the application that the information will be disclosed as a required disclosure or routine disclosure within a period of time specified by the Department or Minister (not exceeding 12 months from the date of the application).

Section 19 – Requests may be refused if resources unreasonably diverted

Where satisfied that the work involved in providing the information requested would substantially and unreasonably divert the resources of a public authority from its other work, or would interfere substantially and unreasonably with the performance of a Minister's other functions, a public authority or Minister may refuse to provide the information without identifying, locating or collating the information.

The matters specified in Schedule 3 must be taken into account and an application must not be refused without first giving the applicant a reasonable opportunity to refine the scope of their application through negotiation with a RTI delegate.

Refining the scope of applications

There are four simple questions to be asked:

1. Can you release anything as an Active Disclosure?
2. Do you need an extension?
3. Are there many pages expected?
4. Can the application be refined in any way to reduce the workload?

RTI delegates should assist the applicant to modify their application to the point that the potential ground for refusal is removed. The most likely way in which the ground for refusal might can be removed would be by limiting the scope of the information requested, but in a suitable case this might also be done by extending the timeline by which the information is to be provided.

Where applicants are unwilling to refine the scope of their application, the application may be refused.

Timeframes

The timeframe to receive information, assess it and send information back to an applicant is 20 working days. This is quite quick, as in this time RTI delegates must:

1. Record the application
2. Undertake an initial assessment to ensure that the application meets minimum requirement
3. Determine whether it should be refused
4. Send the application to the relevant Output to provide unredacted information responsive to the request
5. Collate and schedule the information
6. Redact any exempt information
7. Prepare a written decision explaining the exemptions claimed (copying to Agency Executive if necessary)
8. Ask another RTI delegate to quality assure the decision and documents
9. Send the decision and any relevant material to the applicant.

RTI delegates must take all reasonable steps to ensure the 20-day timeframe is adhered to.

Where the 20-day timeframe cannot be adhered to, Outputs should communicate this to the RTI delegate within a week of any information being requested. The RTI delegate can then negotiate an extension with the applicant. Applicants should regularly be informed of progress where practicable.

Right to access all documents

RTI delegates do not hold or have access to all relevant and applicable information to assess an RTI application. It is necessary for departmental staff members in other Outputs to collate relevant material and provide it to the RTI delegate.

All information from Outputs must be provided in full in an unredacted format. Staff must not edit, redact, or otherwise alter or remove information. To do otherwise may breach s 50(2) of the Act which states:

(2) A person must not deliberately fail to disclose information which is the subject of an application for an assessed disclosure of information, in the circumstances where the information is known to the person to exist, other than where non-disclosure is permitted in accordance with this Act or another Act.

Penalty:
Fine not exceeding 50 penalty units.

Requesting relevant documents

As soon as possible following an initial assessment, RTI delegates should send a copy of the RTI application to those areas of the Department where information relevant to the application is likely to be held requesting a copy of all relevant information.

A due date for the provision of information should be included and Outputs asked to advise as soon as possible if they will not be able to provide the requested information within the timeframe.

Comments from Outputs on the status of information or views on its release may be submitted to RTI delegates. However, it is the RTI delegate only who has the power to determine whether information is exempt under the Act.

If an Output advises that information has been destroyed in accordance with relevant legislation, the Output should be asked to provide details of the legislation and the date the information was destroyed if possible.

Schedule of Documents

RTI delegates should attempt to remove duplicate documents.

The RTI delegate should create a schedule of documents, and include it in the written decision to the applicant.

This process also assists where an internal or external review of the decision is requested.

A schedule should look something like this:

Exemptions

When making a decision, RTI delegates may rely on sections 25 to 42 of the Act to exempt information.

Sections 25 to 32 do not require an assessment of the public interest.

25. Executive Council information
26. Cabinet information
27. Internal briefing information of a Minister
28. Information not relating to official business
29. Information affecting national or state security, defence or international relations
30. Information relating to enforcement of the law
31. Legal professional privilege
32. Information related to closed meetings of council

Sections 33 to 42 do require an assessment of the public interest.

33. Public interest test
34. Information communicated by other jurisdictions
35. Internal deliberative information
36. Personal information of a person
37. Information relating to business affairs of third party
38. Information relating to business affairs of public authority
39. Information obtained in confidence
40. Information on procedures and criteria used in certain negotiations of public authority
41. Information likely to affect State economy
42. Information likely to affect cultural, heritage and natural resources of the State

Public Interest Test

The matters which must be considered in deciding if the disclosure of the information is contrary to the public interest are specified in Schedule 1 of the Act but are not limited to those matters.

RTI delegates must consider these matters for any exemptions being considered under sections 33 to 42 of the Act, balance them, and then come to a conclusion whether it is contrary to the public interest to release the material.

Each redaction must consider all 25 matters. To do this, RTI delegates may wish to draw up a table with three columns, “Yes, No, and N/A”, similar to the following (the table does not need to be included in the written decision):

Consultation

There are a number of situations where consultation should be undertaken in accordance with the Act. These are outlined below.

Consultation may also be required with other jurisdictions in relation to information communicated in confidence (section 34 of the Act).

Personal information of person

Section 36 of the Act provides that information is exempt if its disclosure would involve the disclosure of the personal information of a person other than the person making the application.

Where information has been provided to the Department by a third party and it has been determined that disclosure of the information may be reasonably expected to be of concern to that third party, consultation is to be undertaken, if practicable, before deciding whether the disclosure of the information should occur.

Following consultation, if it is decided to release the information, the RTI delegate must provide written notice to the third party of the decision. Information must not be released until 10 days after that written notice, during which time the third party may request a review.

Information relating to business affairs of third party

The Act provides that information is exempt information if its disclosure would disclose information related to the business affairs of a person or organisation other than the person making an application where the information relates to trade secrets, or the disclosure of the information would be likely to expose the third party to competitive disadvantage.

Where an RTI delegates determines that this may be the case, consultation must be undertaken in accordance with Section 37 prior to a decision being issued.

Decision and Statement of Reasons

Formal written notice of a decision must be sent to applicants in response to RTI applications.

Written decisions must include a statement of reasons when the release of information has been refused, deferred or exemptions claimed.

A written decision should always include the name of the person making that decision, e.g. the Minister, principal officer or RTI delegate.

Applicants must be informed about:

• their right to apply for a review of the decision
• the authority to which the application for review can be made
• the time within which the application for review must be made.

If the decision involves or relies upon consideration of the public interest contained in Schedule 1 of the Act, the written decision should also state the public interest considerations on which that decision was based.

Types of Response

There are a number of ways a response to an RTI application may be developed, including:

• refusal letters
• postponement letters
• transfers
• consultations
• no information held / not in possession
• data only exists in electronic backup
• decision made to release information (with appropriate exemptions if applicable)

Security

Where information is to be released with exemptions claimed and redactions made, RTI delegates must have access to an Adobe Acrobat software that allows for the redaction of information. This can be requested through the IT Service Portal.

The RTI delegate is to undertake the following steps when redacting information:

1. Open Adobe Acrobat Pro 2017
2. Click the ‘Combine Files into PDF’ under ‘Tools’
3. Click ‘Add Files’ in the top left corner
4. Select appropriate file from location and double click
5. Click ‘Combine’
6. Depending on file type, the software may take a short while as it converts the document(s) into a combined PDF
7. Click ‘Tools’ in Adobe
8. Click ‘Redact’
9. Select ‘Mark for Redaction’ or ‘Mark Pages to Redact’ option
10. Once you have selected the text/page to redact, click ‘Apply Redactions’
11. Save the document
12. Click ‘Protection’
13. Click ‘Encrypt’ and select ‘Encrypt with Password’
14. Select the box ‘Restrict editing and printing of the document’
15. Create password
16. Save the document and re-open the document to ensure no further changes can be made.

Provision of Information

Section 18 of the Act provides that a public authority must provide information in the particular form requested unless it is impracticable to do so or to do so would breach copyright.

This will generally be a copy of the information. A copy of information that is provided with exempt information deleted is to have included on it a note to the effect that the copy is not a complete copy of the original information.

However, information may be provided under the Act:

• by giving the applicant a reasonable opportunity to inspect the record containing the information
• in the case of information recorded or embodied in a record in a manner in which it can be reproduced, by providing the applicant with a transcript of the information
• by providing the applicant with a copy, including an electronic copy, of the record containing the information
• in the case of information contained in a record from which sounds or visual images can be reproduced, by giving the applicant a reasonable opportunity to hear the sounds or view the images.

It should also be noted that if a request is made for information of a medical or psychiatric nature concerning the person making the request and it appears to the principal officer or Minister that the provision of the information to that person might be prejudicial to the physical or mental health or wellbeing of that person, the principal officer or Minister may direct that the information not be provided to the person who made the request but must instead be provided to a medical practitioner nominated by that person. Where such concerns are likely to exist, the relevant Output should provide such advice to the RTI delegate.

Agency Executive

Following preparation of a written decision, the RTI delegate should consider whether to inform the Deputy Secretary, Strategy, Governance and Major Projects. As for incoming requests, such considerations could include whether the application has been received from a Member of Parliament or journalist or whether it relates to a topical issue.

Ministerial Offices

Where decisions on applications meet the threshold for informing the Deputy Secretary, at least 24 hours prior to sending out a decision, the Deputy Secretary may consider sending a copy of the decision to the relevant Minister’s Chief of Staff for their information. Ministers and their staff do not have a decision-making role in any applications determined by the principal officer or RTI delegate and must not provide input on what information is released, or how a decision is worded.

At a change of Government, the RTI delegate should ensure protocols, practices and roles are understood by new Ministerial Offices, and that new delegations are put in place.

Sending to applicant

Once a written statement of reasons has been prepared, information has been securely redacted (if applicable) and the Deputy Secretary and/or Minister’s Office have been informed (if applicable), the information can be released to the applicant.

Responses to applicants can be sent via email or post and should generally be provided in the same manner as the application was received, taking into account the matters outlined above under the heading ‘Provision of Information’.

Attach all the documents such as the cover letter, schedule of documents, and redacted version of documents for release. If emailing, include a suitable subject line describing the application.

Once sent, save to Content Manager. The outcome must also be recorded in the RTI Tracking and Statistics spreadsheet as outlined under the heading ‘Recording Statistical Information’ above.

Disclosure Register

The Department maintains a Disclosure Register where it publishes information that has been released to individual applicants and deemed to be in the public interest. This is a Tasmanian Government requirement for all departments.

Information released in response to an application should be placed on this Disclosure Register within 48 hours of release to the applicant. Information should not be published if it includes personal information, information of a commercial or confidential nature. This is an administrative decision only and is not a requirement of the Act.

Internal Review

Section 43 of the Act allows a person to ask for an internal review of an RTI decision sent to them by an RTI delegate.

Once a delegated RTI officer has sent a decision, the applicant has 20 working days to ask for an internal review. The applicant does not have to do or prove anything. They just have to ask for it. The only rule is they must submit the request within 20 working days from when the original decision was given.

The RTI delegate who assessed the original RTI application cannot undertake the review. Another RTI delegate or the principal officer must make a fresh decision.

A third party may also ask for an internal review within 10 working days of release if:

• the decision contains their personal information and they were consulted under section 36, but are not happy with the results, or
• the decision contains information relating to their business affairs and they were consulted under section 37 but are not happy with the results.

In either of these two situations, the person may submit a request for an internal review.

The RTI delegate must undertake the review and provide the applicant with a fresh decision within 15 working days.

External Review

A person can ask for an external review by the Ombudsman after the internal review has been completed.

The applicant must ask for an external review within 20 working days.

A third party may ask for an external review if they fit into one of the following:

• they requested an internal review following consultation under section 36, and are not happy with the outcome of the internal review, or
• they requested an internal review following consultation under section 37 and are not happy with the outcome of the internal review.

A person must ask for an external review in writing to the Ombudsman.

Delegations

The principal officer can delegate their functions to other departmental staff.

Delegations must be kept up to date and are for a maximum of three years.

All ministerial delegations should be reviewed if there is a change of government or changes to portfolios.

All delegations should be saved to Content Manager (FOL/19/2645).

Employees of the Department are not authorised to make decisions on RTI applications if they do not hold a current delegation.

RTI Annual Report

Section 53 of the RTI Act requires the Secretary of the Department of Justice to report on the administration of the Act for all public authorities (including local government councils, other government departments and government business enterprises).

The RTI Annual Report is prepared by the Office of the Secretary and a reporting template must be distributed to all public authorities on or around 1 July each year.

The Annual Report is to be tabled ‘as soon as practicable’ following the end of each financial year.

RTI Webpages

The Department is required to maintain its RTI website to meet the minimum requirements outlined in the Right to Information Regulations 2021. The website should be regularly reviewed to ensure it is up to date and meeting the needs of members of the public - Access to information | Department of Justice.

Resources, Contacts and Links

Departmental Contacts:

Department of Justice

Department of Health

Police, Fire and Emergency Management

Premier and Cabinet

State Growth

Education, Children and Young People 

Treasury and Finance 

Natural Resources and Environment 

Homes Tasmania

Office of the Ombudsman

Email – rti@ombudsman.tas.gov.au

Right to Information (general)

Ombudsman RTI Manual and Guidelines

Ombudsman RTI Decision