Right to Information Procedures

These procedures are made in accordance with the Right to Information – Information Disclosure Policy.

These procedures apply to all State Service Officers.

These procedures apply to the disclosure of information in accordance with the RTIAct, including the four types of information disclosure identified in section 12(2) of the RTI Act:

• Routine Disclosure
• Active Disclosure
• Required Disclosure
• Assessed Disclosure

Agencies may need to disclose information outside of the RTI Act, such as when compelled by Parliament, the Courts or a Commission of Inquiry. These procedures are not intended to apply to these situations.

3.1 The Principal Officer

The Principal Officer is the head of an Agency. Depending on the organisation, this might be a Secretary, Chair, or Chief Executive Officer.

In the Department of Justice, the Principal Officer is the Secretary of the Department.

The Principal Officer has a range of obligations, functions and powers under the RTI Act.

In relation to Assessed Disclosure, these powers and functions are usually delegated to appropriately trained Officers within an Agency to ensure they are carried out effectively and within the timeframes required by the Act.

Principal Officers have responsibility for reporting and ensuring policies and procedures relating to the disclosure of information are developed and published. The Principal Officer’s role is also to ensure the Agency has appropriate processes, training, people, and resources in place to ensure compliance with the RTI Act.

3.2 Delegated Officer

Delegated Officers are those who have been delegated decision making functions and powers of the Principal Officer or Minister. Even though a delegation is in place the Principal Officer or Minister can still exercise their functions and powers and make a decision.

Delegations may be made for up to three years. Agencies should ensure they have appropriate processes in place to track delegations and renew and revoke them as necessary.

Delegated Officers play a critical role in managing Right to Information (RTI) applications within Agencies. The primary responsibility of a Delegated Officer is to ensure that requests for information are processed in accordance with the RTI Act.

Key responsibilities of Delegated Officers include:

• Assessing applications: Delegated Officers must review each RTI application to determine whether it contains the prescribed information in accordance with the Right to Information Regulations 2021 (RTI Regulations), ensure the request is clear and where necessary, assist Applicants in refining the scope of their request.
• Information retrieval: Delegated Officers request that Information Custodians identify all information relevant to a request for Assessed Disclosure. Delegated Officers must take all reasonable steps to gather as much relevant information as possible, satisfying themselves that a thorough search has been conducted by the relevant Output and emphasising the tight deadlines under the RTI Act. Delegated Officers may also liaise with records management teams to carry out key word searches.
• Assessing information: Delegated Officers are responsible for determining whether any part of the requested information is exempt under the RTI Act and where applicable, take into consideration the public interest test.
• Consultation: if third party consultation is required in respect of personal or confidential business information, Delegated Officers must consult with the third parties in accordance with the provisions of the RTI Act.
• Decision-making: Delegated Officers are responsible for making decisions in accordance with the RTI Act. They must provide clear reasons for their decisions, including any exemptions applied or reasons for refusal, and communicate these reasons to the Applicant in writing.
• Ensuring Timeliness: Delegated Officers must ensure that applications are processed within the statutory timeframes, which may be extended under certain circumstances such as third-party consultations, by agreement with the Applicant or by application to the Ombudsman. Prompt communication with Applicants regarding delays or extensions of time, is essential.

Delegated Officers may also provide guidance on information disclosure apart from Assessed Disclosure.

3.3 Information Custodians

Information Custodians are the managers of Outputs within an Agency responsible for the creation and management of information relating to that Output’s business activity.

Information Custodians hold the information requested and have subject matter expertise which might be relevant to locating information and informing the Delegated Officer’s assessment under the RTI Act. Therefore, they play a key role in assisting Delegated Officers to respond to requests for information.

3.4 Record Management Team

The records management team within an Agency is responsible for ensuring the adequate creation, maintenance and disposal of an Agency’s records in compliance with the relevant retention and disposal schedule and the Archives Act 1983.

The record management team’s role is critical to ensuring information is preserved so it is accessible, including to Applicants under the RTI Act.

Depending on the Agency, they may also play a role in assisting with the searching of information – either by undertaking the primary search or acting as a control mechanism to ensure the Information Custodian has located all relevant records.

3.5 Roles and Responsibilities

An overview of Authorised Officers who make decisions and their responsibilities regarding the disclosure of information is provided in the table below.

4.1 Who is responsible for Routine Disclosure?

The Principal Officer is responsible for ensuring compliance with the RTI Act within their Agency, including ensuring the appropriate Routine Disclosure of information.

Information Custodians are responsible for identifying information that is suitable for Routine Disclosure and seeking relevant approvals for disclosure.

Information Custodians are responsible for the preparation of information to be Routinely Disclosed. The Office of the Secretary in Agencies is usually responsible for the publication and maintenance of their Routinely Disclosed information.

The Routine Disclosure of certain information data sets is coordinated centrally in April and October by the Department of Premier and Cabinet (DPAC), however Agencies can Routinely Disclose information at other times as well.

4.2 How to identify information for Routine Disclosure

Information Custodians should regularly review what information is in their possession and consider whether it is appropriate for Routine Disclosure. Repeated requests for the same information may be a good indicator of information that should be considered for Routine Disclosure.

Information will typically only be appropriate for Routine Disclosure if it is of interest to the public, and if it does not contain any information that ought to be exempt under the RTI Act or protected from disclosure under the Personal Information Protection Act 2004, or any another Act.

In assessing whether information is appropriate for Routine Disclosure, Information Custodians should consider what the information is, for what purpose it was created, and whether the public would benefit from access to it. Information Custodians can seek advice from a Delegated Officer if required.

Once information potentially suitable for Routine Disclosure is identified, there is a two staged test that should be undertaken. Information Custodians should first consider the sensitivity of the information, then consider whether it may be of interest to the public.

(i) Sensitivity Test

If the answer to any of the following questions is yes, the information is unlikely to be appropriate for Routine Disclosure. However, the Principal Officer reserves the right to determine that any information in the possession of the Agency can be released routinely.

• Does the information disclose deliberation relating to an action or decision that has not yet been announced or finalised?
• Does the information reveal a decision or deliberation of Cabinet or Executive Council?
• Does the information include legal advice, or communication between the Agency and its legal advisers?
• Does the information contain personal information?
• Would disclosure of the information expose a person, group of people or organisation to any kind of harm?
• Would disclosure of the information expose the environment or Tasmania’s cultural or natural resources to any kind of harm?
• Would disclosure of the information make it more difficult for the government to obtain this kind of information in the future?
• Would disclosure of the information prejudice a process or investigation that is currently underway?
• Was the information provided by a third party who has not provided consent for the information to be disclosed?
• Is disclosure of the information limited or prohibited by law - having regard to legislation, the common law, equity and any other legal obligation such as a contractual agreement or copyright?

(ii) Public Interest

When considering whether information is of interest to the public, the meaning of public should be treated broadly. If information would only be of interest to a specific group of people or an individual, it is not of interest to the public and so may not be appropriate for Routine Disclosure. If the answer to any of the following questions is yes, the information is likely to be of interest to the public and appropriate for Routine Disclosure, subject to the information passing the sensitivity assessment.

• Does the information relate to a topic that has been, or is regularly asked about in Parliament?
• Does the information relate to a topic that has been, or is regularly asked about via requests for Assessed Disclosure or otherwise?
• Does the information relate to a topic that has been, or is regularly reported on in the media?
• Does the information relate to a topic that there has been community activity for?
• Does the information relate to a major or significant project?
• Does the information relate to a major or significant industry?
• Does the information provide useful insight on its subject matter?
• Would the information help the public understand a process or decision?
• Would disclosure of the information increase government accountability?

Once an Information Custodian has determined that information is suitable for Routine Disclosure, an Information Custodian should make sure that the information is accurate, tells the full story as much as possible, and can be prepared and published without substantially and unreasonably diverting the resources of an Agency from other core work.

If in doubt about whether a data set is appropriate for Routine Disclosure, Information Custodians should consult a Delegated Officer for advice.

4.3 When should Routine Disclosure occur?

Routine Disclosures should be updated on a regular basis to ensure the information can be as useful as possible to the public. At a minimum, Routinely Disclosed information should be updated every 12 months.

DPAC co-ordinates whole of government Routine Disclosures in April and October every year. However, information can be Routinely Disclosed outside of these periods.

It is usually the responsibility of the Information Custodian to ensure Routinely Disclosed information remains current and accurate.

4.4 Publication

Once information is approved for Routine Disclosure, the publishing and maintenance of the information is usually the responsibility of the Information Custodian.

In the Department of Justice, publication of April and October Routine Disclosures is coordinated by the Office of the Secretary.

Information should be published on an Agency’s website.

Publication should be in a format that is accessible, taking into consideration the principles of availability and accessibility as outlined in the Tasmanian Government Corporate Brand Identity and Communications Policy.

5.1 Who is responsible for Active Disclosure?

Active Disclosure occurs whenever an Agency releases information to a person in response to a request.

Active Disclosure happens frequently through the normal business of Agencies, for example, staff engaging with members of the public or responses to media requests to communications teams. These processes should continue to be undertaken in accordance with the procedures of the Output that receives the request, including ensuring any necessary approvals are obtained where required.

When a request for information is received by an Output that does not usually deal with external requests for information, advice may be sought from a Delegated Officer as needed.

When a request for information is received by the RTI team, the Delegated Officer should first engage with the Information Custodian to determine whether the information is appropriate for Active Disclosure. If Active Disclosure is appropriate, this may occur through the relevant Output in accordance with its usual processes and approvals. Active Disclosure may also be undertaken by the RTI team, in accordance with any necessary approvals.

5.2   Determining whether information should be Actively Disclosed

When determining whether information should be released as an Active Disclosure, the key assessment is whether the information contains any sensitivities that may make it unsuitable to be released, either in part or in its entirety.

To make this assessment, Delegated Officers should apply the sensitivity test.

If the answer to any of the questions outlined in 4.2(i) above is yes, the information is unlikely to be appropriate for Active Disclosure. However, the Principal Officer reserves the right to determine that the information can be released actively.

If any of the above sensitivities referred to in the list at 4.2(i) apply to the information, it is unlikely to be suitable for Active Disclosure. It may be appropriate to Actively Disclose part of the information, with any sensitive information redacted – the requestor may not be seeking the sensitive information. However, if the requestor specifically wants the sensitive information the request should be treated as a request for Assessed Disclosure.

Depending on how the initial request was made, the requestor may only need to pay the RTI application fee or request a waiver in order for the request to be treated as an application for Assessed Disclosure. Otherwise, the person should be directed to the information on an Agency’s website about how to make an Assessed Disclosure application.

5.3   Process for Actively Disclosing information

If it has been determined that Active Disclosure is appropriate and the relevant approvals have been obtained, the information should be released to the requestor, either by the Information Custodian or the RTI team.

If the Information Custodian received the request, it will be appropriate for them to respond directly. It will also be preferable for the Information Custodian to respond if it is considered likely that the requestor will have follow up questions.

If the RTI team received the request, they may disclose the information to provide continuity, or they may refer the requestor to the relevant Information Custodian for response.

The information can be disclosed by either providing the requestor with a copy of the information or providing them a reasonable opportunity to inspect it.

If the requestor has asked for the information to be provided in a particular form, it should be provided in that form unless it would be impractical to do so or would be a breach of copyright.

Some primary and subordinate legislation or other instruments require disclosure of certain information. Information Custodians should undertake Required Disclosure in accordance with these. For example, after being tabled in Parliament, there is a requirement that Annual Reports are published.

7.1   Who is responsible for Assessed Disclosure?

The Principal Officer or a Minister possesses the functions and powers under the RTI Act to manage and determine applications for Assessed Disclosure.

It is common practice in the Tasmanian State Service for Principal Officers and Ministers to delegate their functions and powers to appropriately skilled Delegated Officers.

Accordingly, Delegated Officers are primarily responsible for managing applications for Assessed Disclosure submitted to Agencies or Ministers.

Information Custodians are responsible for ensuring that requested information is provided to the Delegated Officer within the timeframe requested by the Delegated Officer. If that timeframe cannot be met, Information Custodians must let the Delegated Officer know as soon as possible so they are able to keep the Applicant informed of progress and negotiate the timeframe for a decision to be provided.

7.2   Delegating functions and powers

A Principal Officer or Minister must not delegate their functions and powers under the Act unless they are satisfied the person has the necessary skills and knowledge.

The RTI Act does not provide any guidance on what skills and knowledge are needed. In practice, exercising the functions and powers contained in the RTI Act requires high level analytical skills, confidentiality, and the ability to interpret legislation.

The following selection criteria should be used as a guide to determine whether an officer has the requisite skills and knowledge to perform the duties of a Delegated Officer.

Selection Criteria

• Ability to interpret and apply the law:

Delegated Officer must be able to interpret and apply the RTI Act and other relevant legislation. A strong understanding of the principles of administrative law is also highly desirable.

• Communication and interpersonal skills:

Effective communication is essential for interacting with internal staff and Applicants, explaining decisions and collaborating with different stakeholders. It is essential for building cooperative relationships with Information Custodians in order to promote effective and efficient searching and ensure all relevant sensitivities are identified with respect to any form of information disclosure.

• Decision-making and problem-solving:

Delegated Officers need excellent problem-solving and decision-making skills, with the ability to consider the context in which information exists when making decisions.

• Confidentiality:

Delegated Officers may be exposed to highly sensitive information and need to be able to maintain its confidentiality. This is also a requirement of the State Service Code of Conduct.

• Resolute:

Delegated Officers require the ability to maintain confidence in their decisions in high-pressure situations and in the face of criticism. They need to be able to trust their professional judgement and be able to navigate differing opinions with integrity.

Conflict of Interest

When making decisions, it is critical Delegated Officers are only influenced by genuine and relevant factors. A conflict of interest occurs when your own interests clash with your responsibility to act in the best interest of your work.

As decision makers, Delegated Officers are required to be impartial and have no personal stake in the decision to be made. Delegated Officers must be free of both actual and apparent bias. For example, a Delegated Officer who knows an Applicant personally must consider passing the matter to another officer for decision, especially if there is a close or social relationship. Delegated Officers must approach every decision with an open mind. Failing to effectively manage conflicts of interest can lead to improper decision-making and or a breach of codes of conduct. There is a trust in government that Delegated Officers’ decisions are made on proper grounds, for legitimate reasons and without bias.

Training

In addition to determining a person’s suitability against the selection criteria, Principal Officers and Ministers should consider whether the person has any appropriate training and/or qualifications.

At a minimum, a person should have completed the Delegated Officer online training modules developed by DPAC before they can exercise the functions and powers contained in the RTI Act.

Tertiary qualifications in law are also desirable but are not mandatory. However, if a Delegated Officer does not have tertiary qualifications at law, they should ideally be supervised by someone who does.

In addition to completing the training modules, Delegated Officers should receive on the job training/mentorship from experienced Delegated Officers. If an Agency does not currently have any experienced Delegated Officers, assistance can be sought informally from Delegated Officers in other Agencies and by participation and the raising of issues at the RTI Working Group. The RTI Working Group is coordinated by the Department of Justice, to join contact rti@justice.tas.gov.au.

It is also desirable for Delegated Officers to undertake any training offered by the Ombudsman’s office.

7.3   Acknowledging Applications

When an Agency receives an application for Assessed Disclosure, Delegated Officers should confirm receipt of the request and provide the Applicant with information on the process that will follow.

The acknowledgement of receipt of an application for Assessed Disclosure is not a requirement of the RTI Act, and in some Agencies this task is completed by administrative staff. In smaller agencies this may be completed by a Delegated Officer.

It is considered best practice to acknowledge the receipt of an application, giving the Applicant peace of mind that the application has been received and is being acted upon.

A return acknowledgement should ideally be sent to the Applicant within 24 hours of receipt of the application, but at least no later than 5 working days from receipt of the application unless a substantive response can be provided within this time. See Appendix A for an example of an acknowledgement email/letter.

7.4   Reviewing Applications

When an application for Assessed Disclosure is received, consideration should be given to whether the request is instead suitable for Active Disclosure using the process set out above. If a fee has been paid and it is decided to release the information under Active Disclosure, the fee will need to be refunded.

If it is determined that the request should be treated as an application for Assessed Disclosure, the Delegated Officer should then review the application to ensure it contains the minimum information as prescribed in the Right to Information Regulations 2021.

Delegated Officers should confirm the application contains:

1. the name of the Applicant
2. a postal address, or email address for the Applicant, to be used for communication on matters relating to the application
3. the contact details of the Applicant where the Applicant may be contacted during ordinary business hours
4. the general subject matter of the application
5. details of the information sought by the Applicant under the application, including all relevant dates and time periods that may relate to the information being sought, if known by the Applicant
6. details of efforts undertaken by the Applicant, if any, before the application was made, to obtain from publicly available sources the information sought
7. the date on which the application was signed by the Applicant
8. if the application includes a request for personal information of the Applicant, proof of identity of the Applicant and or a signed consent form if the applicant is acting on someone’s behalf.

See Appendix B for a summary of assessed disclosure processes.

In accordance with section 16 of the RTI Act, the application is also required to be accompanied by an application fee, or a request for a fee waiver on specified grounds.

The Delegated Officer must assist the Applicant to make a valid application. If anything is missing from the application, it is important to contact the Applicant as soon as possible to rectify any missing or incorrect information.

Once satisfied of the above, a Delegated Officer should then turn their mind to whether the application has been directed to the correct Agency or Minister and whether the scope of the request is sufficiently defined to allow the request to be responded to under the Assessed Disclosure process.

If the Delegated Officer considers that the subject matter of the application, or part of it, is more closely connected with the functions of another Agency or Minister, they must transfer it to the other Agency and the Applicant advised accordingly.

Before undertaking the transfer, the other Agency or Minister should be contacted to seek their views as to whether the application, or part of it, should be transferred. Once both parties have agreed which Agency or Minister is better suited to respond based on functions, the transfer should occur.

Once a Delegated Officer is satisfied that the application is being responded to by the correct Agency or Minister, they should then consider whether the application is suitable to be accepted in its current form, or whether it needs to be refined and/or refused.

As noted above, there is a requirement to assist an Applicant to make a valid application, and to negotiate regarding any potentially confusing or unmanageable scope before considering refusing an application.

At all stages of the application process Delegated Officers must work with the Applicant to ensure the application is in a form that will be accepted. It is not enough to simply reject the application outright because it appears voluminous and or appears to divert the resources of the Agency.

The exception to this is where an application is being refused on vexatious or repetitive grounds.

The pro-disclosure objects of the RTI Act means that requests should not be refused lightly. When considering whether requests should be refused under any of the available provisions in the RTI Act, regard should be had to the relevant Ombudsman Guidelines.

When refining a request with an Applicant, Delegated Officers should work with the Information Custodian to determine what a reasonable request is.

Once the scope of the request has been determined in agreement with the Applicant, to be acceptable, notice of acceptance of the varied or refined request should be provided to the Applicant.

This is not required if the application can be responded to within ten working days of receipt, as the acceptance and decision can be provided simultaneously to reduce unnecessary handling of the application.

When accepting the request, Delegated Officers should identify whether the request is being accepted at the date negotiations concluded, or the date the application was received, depending on which applies under the RTI Act (see Assessed Disclosure process timeline diagram at Appendix C). The Applicant should then be informed of the date that is 20 working days later, when they can expect to receive their decision. An example of an acceptance email is provided at Appendix D.

7.5   Applicant refuses to refine application

The Applicant has the right to refuse to change or modify their application. If an Applicant refuses to refine their application, an Agency or Minister can either accept the application or refuse it.

The decision to refuse an application is reviewable. A Delegated Officer should document their negotiations and efforts to refine the application, as the Ombudsman will consider this information when determining whether the refusal was appropriate. A Delegated Officer must have taken all reasonable steps to assist the Applicant.

7.6   Search and retrieval of information

Upon receipt of a request for Assessed Disclosure, the relevant Information Custodian is to undertake a discovery of relevant records.

The Information Custodian is responsible for searching and producing the information to be assessed. The Delegated Officer will assist the Information Custodian with interpreting the scope of the request.

Information must be provided to the Delegated Officer within the requested timeframe. If an Information Custodian cannot meet the timeframe requested by the Delegated Officer, they must inform the Delegated Officer as soon as possible to ensure they can keep the Applicant informed and get an extension if necessary.

If the Applicant is of the view that the search for information has been insufficient, they may seek a review of the decision made by the Delegated Officer. In this instance, the Ombudsman may request a report on how the search for information was conducted.

Information Custodians may be requested to provide a report of the search undertaken to locate the information requested. It is important to keep a diarised note, schedule or records of emails of how you searched for information.

All information, whether potentially exempt or not, must be provided to the Delegated Officer for assessment. It is the role of the Delegated Officer to assess the information to determine if it is exempt from release or not. Information Custodians may wish to provide general information about the nature and content of the information to the Delegated Officer to assist with their assessment, but the Delegated Officer is the final decision-maker.

Delegated Officers may also consider asking an Agency’s record management or information technology teams to undertake an independent search in order to act as a control (see Appendix E for guidelines on search procedures).

7.7   Undertaking third party consultation

The Act requires third parties to be consulted. If third parties are mentioned in any of the documents being reviewed, a Delegated Officer will contact the third parties and inform them of their rights under the RTI Act. See Appendix F as an example of a third party letter template explaining the party’s rights under the RTI Act. The third party will also need to be informed of the time they have to respond to the application. A Delegated Officer will need to send a copy of their final decision to the third party.

The RTI Act has separate considerations for Information relating to third parties concerning personal information and Information relating to the business affairs of third parties. A Delegated Officer should familiarise themselves with these differing considerations.

7.8   Assessing Information

Assessing whether information should be released to the Applicant or not is the responsibility of the Delegated Officer. The Delegated Officer must consider the provisions of the RTI Act, Ombudsman’s guidelines and decisions, case law and any relevant context when determining whether information should be exempt under the RTI Act.

7.9   Redactions

Redactions should be applied to exempt information using appropriate software.

Redactions must be legible and formatted clearly, with explanatory notes indicating what section of the RTI Act has been relied on to exempt the redacted information.

Care should be taken to ensure the colours used on the redaction block and text overlay are accessible.

The recommended colour settings are a black hue setting for the redacted section and a red solid colour for the writing of the applicable section of the RTI Act.

7.10  Providing a written decision

Delegated Officers are required to provide Applicants with written notice of the decision.

A decision letter must contain the following information:

• what has been decided (for example exempt, release or a combination)
• the reasons any exemptions were applied
• who made the decision and under what authority
• a summary of how many records were identified and how many are being released in part or in full (see Appendix G for sample decision letter)
• the Applicant’s right to seek a review of the decision and how to do so
• an attached schedule of documents if there is more than 5 pages of documents.

It is also helpful if decisions provide the following:

• an explanation of the history of the request, including when it was accepted
• any negotiations that took place
• a statement that the Agency/Minister’s office records were searched.

7.11  Names of Delegated Officers

A Delegated Officer’s name will usually be on a decision notice unless the Delegated Officer requests otherwise and can indicate that special circumstances exist. Examples of these special circumstances may include specific risk of harassment of certain staff, specific risk of harm to a particular employee, and employees under investigation or assisting an investigation.

A Delegated Officer should reach out to their Human Resource Department or manager, if needed, to discuss this.

7.12  Executive Noting Process

Agencies should have a process in place to allow for RTI decisions to be noted by any relevant parties such as the Principal Officer, the relevant Minister’s office and or Communications staff prior to the release of the decision to the Applicant.

It is important to keep in mind that the purpose for sharing the decision is to notify decision makers of the pending release of the decision so that they can undertake any necessary preparations for the release of the information. This may include preparing a media response or notifying any impacted stakeholders. The noting process is not for the Delegated Officer’s decision to be vetted or approved.

The executive notification process must not unduly impact the Delegated Officer’s ability to release the decision to the Applicant within the timeframe required by the RTI Act.

If an issue arises during the notification period such as those mentioned above that will mean the decision cannot be released on time, the Applicant should be informed of the delay in receiving their application and an extension should be sought.

7.13  Publication on Disclosure Log

In accordance with the Right to Information – Information Disclosure Policy, Agencies should publish information released to an Applicant under RTI to their Agency’s website disclosure log if the information is likely to be of interest to the public. Relevant matters to consider when deciding whether to publish released information include whether the applicant sought fee waiver on any other ground than financial hardship, the factors set out at above at 4.2(ii) in relation to the Routine Disclosure of information.

A disclosure log may include the following:

• A summary of the request for information (this gives context to the nature of the released information).
• The date of release of the decision.
• The category of Applicant. For example, a Member of Parliament, journalist, organisation, member of the public.
• The information released to the Applicant.

The actual Assessed Disclosure decision letter should not be published on the disclosure log.

Deciding what information to release to an Applicant and what information to publish on the disclosure log are separate decisions. The first decision has a legislative basis, and the second is administrative only.

The disclosure log will not necessarily include all information that has been released in response to requests for Assessed Disclosure, only information considered to be in the public interest.

Applicants will be advised in the letter acknowledging their application that information released to them may be disclosed on the disclosure log.

Any third parties who are consulted during the assessment process will also be advised of this possibility. The Applicant or the third party may wish to provide their views regarding the publication of information on the disclosure log and these should be considered accordingly by the Agency.

Agencies may also wish to publish information that has been Actively Disclosed on the disclosure log.

If an Applicant is dissatisfied with the decision, they have the right to request a review. The review right they have will depend on who made the decision and what the decision was. If a decision is not provided within the statutory timeframe and no extension of time has been agreed, the Applicant can also request an external review from the Ombudsman’s office for deemed refusal.

8.1   Internal review

If an Applicant or a third party is dissatisfied with an RTI decision, they can seek a review of a Delegated Officer’s decision within 20 days of receiving the decision. If the decision was made by the Principal Officer there is no right to internal review, only to external review by the Ombudsman. Applications for internal review must be made within 20 working days after the notice of the decision has been given and in accordance with section 22 of the RTI Act.

The internal review is undertaken by a different Delegated Officer assessing the relevant information from scratch and making a fresh decision. The Delegated Officer undertaking the review is tasked with issuing a fresh decision which should not be influenced by what the original decision was. During the internal review any third parties may need to be notified of the internal review and afforded the same processes as in the first decision.

Best practice dictates that an internal review will be conducted by a Delegated Officer who was not involved in the original decision and preferably by a Delegated Officer at the same level or more senior or by the Principal Officer. It has been noted in previous Ombudsman decisions that an internal review process should not be carried out in a situation where a junior Delegated Officer is placed in a position where they are potentially reviewing a more senior Delegated Officer’s work. However, in smaller teams this may not be an efficient use of resources, it may not reflect the differing levels of experience within a team and may not reasonably reflect the fact that the internal review is undertaken afresh.

8.2   External review

An Applicant or a third party, if dissatisfied with an internal review decision, may apply to the Ombudsman’s office for an external review within 20 days of receiving the decision. The external review process is carried out by the Ombudsman’s office. A decision made by the Ombudsman as part of the external review either affirms (upholds), varies or sets aside a Delegated Officer’s decision. For example, by replacing it with a decision to disclose part or all of the information requested.

When copying and collating information for external review for the Ombudsman, it is important to consider the following:

• All relevant material should be provided electronically rather than in hardcopy where possible.
• Do not provide duplicates.
• Please ensure information is provided in date order where possible (oldest first).
• Ensure that any attachments are with related records. Attachments to emails should come after emails not before.
• If there is sensitive information, please make a note when you provide the information so if needed it can be discussed.
• Do not remove confidential or sensitive information because it is the Ombudsman’s role to assess the entirety of the information.
• Ensure a page numbering system is used, preferably starting at 1 and not restarting for each document listed in the schedule.

If an external review is sought on the grounds of insufficiency of search, the search record will be important. A search record in table format will assist the Ombudsman when reviewing the decision.

On external review the Ombudsman will require all documents, including previously redacted information not provided to the Applicant. A new version of the information may need to be prepared and sent to the Applicant. An Agency may decide to upload the revised decision to their disclosure log.

Agencies should monitor their RTI processes to ensure compliance with statutory obligations, including the timely processing of applications and correct application of exemptions.

The Department of Justice coordinates an annual report of RTI activities at the end of each financial year covering all Public Authorities. Public Authorities must ensure they maintain statistical information appropriate for reporting in accordance with the RTI Act, including the number of applications received, the outcome of applications, reasons for refusals and exemptions used, timeframes for decisions, transfers and withdrawals made in part and in full and the number and outcomes of internal and external reviews.

The Department of Justice will contact Agencies after each financial year and seek this data. The data should be reviewed thoroughly prior to sending to the Department of Justice to ensure it is accurate and complete.

Full details on the data required from Public Authorities can be found in the annual report which is publicly available on the Department of Justice website following tabling in Parliament. The link is Access to information | Department of Justice.

Appendix A - Acknowledgment Letter/Email

[APPLICANT NAME]
[TITLE]
[ORGANISATION NAME]
[ADDRESS]
[SUBURB] [STATE] [POSTCODE]

Email: [EMAIL ADDRESS]

Dear [NAME]

I acknowledge your request for information made pursuant to the Right to Information Act 2009.

A Delegated Officer will consider your application and be in contact soon.

Please note, the [DEPARTMENT/MINISTER] has ten working days after receipt of an application to negotiate with an Applicant to refine or redirect the application before accepting it.

Please also note that if your application is accepted, any information released to you may also be published on the [DEPARTMENT’s] Disclosure register.

Yours sincerely

[NAME SURNAME]

Delegated Officer

[DATE]

Appendix B - Overview of RTI Processes for Assessed Disclosure

Receiving Applications:

Applications for Assessed Disclosure must be submitted in writing, clearly specifying the information being requested. Applicants are encouraged to use the standard RTI application form, but it is not mandatory. Upon receiving the application, an Agency should acknowledge receipt, usually within five working days (see Appendix A).

Initial Assessment:

The Delegated Officer reviews the application to ensure it meets the requirements of the RTI Act, including the payment of any applicable fees. If the application is unclear or incomplete, the Delegated Officer must assist the Applicant to refine or clarify the request.

Information Retrieval:

Once the application is accepted, the Delegated Officer coordinates with the relevant departments, Outputs and or records management teams, to retrieve the requested information. This may involve identifying documents, reports or data within the scope of the request. Outputs must respond within the specified timeframe.

Applying Exemptions:

The Delegated Officer assesses whether any of the requested information is exempt under the RTI Act. For some exemptions the public interest test is applied to determine whether the release of exempt information would be contrary to the public interest. Delegated Officers may consult with colleagues when faced with difficulties applying the exemptions. They should also consider previous Ombudsman’s decisions published on the Ombudsman’s office webpage for guidance on the application of particular exemptions.

Consultation with Third Parties:

In cases where the requested information involves third party, personal or business information, Delegated Officers must consult with the third parties regarding business affairs and where practicable personal information, before making a final decision. This consultation period will extend the deadline for the decision.

Decision-making

Once all the relevant information has been retrieved and assessed, the Delegated Officer decides whether to release or withhold the information. The Delegated Officer must give the Applicant a written decision setting out the reasons for any refusal or exemptions applied. If the information is being released, the decision letter explains how the Applicant can access the information.

Redactions and Format:

If part of the information is exempt, the Delegated Officer must ensure that redactions are applied using a black block with the relevant section of the RTI Act applied in red. The released information will usually include a schedule listing the documents assessed and the decision in relation to each. The released information package should be clearly marked with consecutive and continuous page numbers that match the schedule.

Timeframes:

The RTI Act requires applications to be dealt with within 20 days. This time starts either once the applicant has been notified their Assessed Disclosure application has been accepted or 10 working days has passed since the application was received. Formal consultation undertaken under sections 36 and or 37 extends the timeframe by an additional 20 working days. Applicants must be informed of any extension in advance. Extensions of time may also be agreed by negotiation with the applicant.

Disclosure Log:

If the information released to an applicant is of interest to the public, it may be uploaded to the Agency’s disclosure log within 48 hours of being provided to the applicant. This ensures wider public access to information, in line with the objects of the RTI Act.

Internal and External review:

If an Applicant is dissatisfied with a Delegated Officer’s decision, they can request an internal review by another Delegated Officer. Should the Applicant remain unsatisfied after the internal review, they may seek an external review by the Ombudsman.

Appendix C – Process Map of RTI Processes for Assessed Disclosure*

*Flow chart diagram of RTI processes for Assessed Disclosure applications. Application is lodged with an agency; application is either accepted of refused. If accepted, information from relevant Outputs is obtained, assessed by RTI delegate, decision written and passed onto to manager and or Minister for noting. Decision returned to delegate and provided to applicant and published on disclosure log.

Appendix D – Example Acceptance Letter

[APPLICANT NAME]
[TITLE]
[ORGANISATION NAME]
[ADDRESS]
[SUBURB] [STATE] [POSTCODE]

Email: [EMAIL ADDRESS]

Dear [NAME]

I write to accept your application made under the Right to Information Act 2009 (the Act) to [DEPARTMENT/MINISTER], seeking the following information:

[REQUESTED INFORMATION]

I am a Delegated Officer for the [DEPARTMENT/MINISTER] under section 24 of the Act.

I note you have paid the application fee.

OR

I accept the request for a fee waiver in accordance with section 16(2)(b) of the Act as I am satisfied that you are intending to use the information for a purpose that is in connection with your official duty as a Member of Parliament.

OR

I accept the request for a fee waiver in accordance with section 16(2)(b) of the Act as I am satisfied that you are intending to use the information for a purpose that is in connection with your professional duty as a journalist.

OR

I accept the request for a fee waiver in accordance with section 16(2)(a) of the Act on the grounds of financial hardship.

OR

I accept the request for a fee waiver in accordance with section 16(2)(c) of the Act as I am satisfied that you intend to use the information for a purpose that is of general public interest or benefit.

I take your application to be accepted on the date it was received, which was [DAY MONTH YEAR].

OR

[SPECIFY NEGOTIATIONS AND PROVIDE ACCEPTANCE DATE OF TODAY].

I will endeavour to provide you with a decision by [DAY MONTH YEAR].

Please note that information released in response to an application for Assessed Disclosure may be released here [link] within 48 hours of being provided to you.

Should you have any questions in relation to this matter, please do not hesitate to contact me by email at [EMAIL ADDRESS] or by telephone on [TELEPHONE NUMBER].

Yours sincerely

[NAME SURNAME]

Delegated Officer

[DATE]

Appendix E – Example Search Instructions

Instructions for supplying information

Receipt of request

• Read the request in full and ensure that you understand what information is being requested. If you are uncertain about what is being requested, please contact the Right to Information (RTI) Delegated Officer as soon as possible.
• If you think that responding to the request would take a substantial and unreasonable amount of time, please contact the RTI Delegated Officer as soon as possible.
• If you think you may have any conflict of interest in coordinating a response to this request or collecting the relevant documentation, arrange for another appropriate officer to undertake the search.

Searching

• If there is any publicly available information (e.g. it is already available on the Agency website, for purchase on the LIST etc.), please do not include a copy of this information as it does not need to be assessed. Rather, please advise the RTI Delegated Officer where it can be located (e.g. the website address) so the Applicant can be directed to it.
• Locate all relevant information held by your Output in hard copy and electronically in Content Manager, email, shared drives, staff work mobile telephones etc.
• Information means official business information, in any format by which words, figures, letters or symbols are recorded, including a map, plan, graph, drawing, painting, recording and photograph, and anything in which information is embodied so as to be capable of being reproduced.
• Text messages from a work mobile telephone are captured, including WhatsApp and other instant messenger service messages.
• Pay attention to the wording of the request. For example, if the Applicant has asked for correspondence between 1 January 2019 and 30 June 2019, you should only search and provide correspondence between these dates.
• If a preliminary search finds there is a large amount of information relevant to the request, please contact the RTI Delegated Officer immediately so consideration can be given to refining the scope with the Applicant.
• Officers conducting the search must have access to all relevant systems. Ask the Records Team to assist with more complex searches or if you need assistance with retrieving information from the Archives Office.
• Use the attached Search Record template to record the steps taken in conducting the search.

Copying and collating

• All relevant information should be provided electronically rather than in hardcopy.
• Please do not provide duplicates.
• Please ensure that information is provided in date order where possible (oldest first).
• Ensure that any attachments are with related records. Attachments to emails should come after emails, not before.
• If there is sensitive information, please make a note when you provide the information back to the RTI Delegated Officer so they can discuss this with you.
• Please do not remove confidential or sensitive information because it is the RTI Delegated Officers role to assess and apply exemptions under the Right to Information Act 2009, if appropriate.

Search Record

Adapted from Ombudsman’s Guideline No. 4/2010, Guideline in Relation to Searching and Locating Information

*Delete example in italics

Note:

The Search Record becomes important if the Applicant applies to the Ombudsman requesting a review of a decision where:

• the Department or Minister has determined that the information was not in existence on the day the application was made.
• the Department or Minister has determined that the information is not in the possession of the Agency or
• the Applicant believes, on reasonable grounds, that the Department or Minister has made an insufficient search for the information.

Appendix F: - Third party sample letter

[APPLICANT NAME]
[TITLE]
[ORGANISATION NAME]
[ADDRESS]
[SUBURB] [STATE] [POSTCODE]

Email: [EMAIL ADDRESS]

Dear [NAME],

Right to Information third party consultation

The [MINISTER/DEPARTMENT] has received an application made pursuant to the Right to Information Act 2009 (the Act) for information concerning [REQUESTED INFORMATION]. The applicant is a [APPLICANT TYPE].

A copy of the Act can be viewed at www.thelaw.tas.gov.au.

The Act provides people with a legally enforceable right to access government held information unless it is exempt under the Act.

A search of the [MINISTER’S/DEPARTMENT’S] records has identified the following information acquired from you as relevant to the application:

• Text messages, emails and letters which reveal personal information of yours such as your name, position title, email address and phone numbers, and or information relating to your company.

Section 36 (third party personal information) and or section 37 (third party business information) of the Act requires that I seek your views before deciding whether to disclose this information.

Accordingly, I invite you to provide your views by no later than [DATE 15 WORKING DAYS FROM DATE OF LETTER], as to whether the above information should be disclosed to the applicant. * It is important that you provide reasons to support any views seeking to have the information withheld.

If appropriate, please indicate whether deletion of any of the information would reduce or remove any objection you may have to disclosure of the information.

In the event that I decide to disclose any of the information on which you have been consulted, you will be notified of my decision and your right to apply for a review of the decision.

If you do not provide your views within 15 working days, you will not be entitled to receive notification of my decision or have a right to apply for review of it.

Please contact me if you have any questions in relation to this letter.

Yours sincerely

[NAME SURNAME]

Delegated Officer

[DATE]

* For a section 37 letter it is best to direct the third party to consider trade secrets and or competitive disadvantage as to what can be exempt which they may not be aware of.

Appendix G: Sample decision letter

[APPLICANT NAME]
[TITLE]
[ORGANISATION NAME]
[ADDRESS]
[SUBURB] [STATE] [POSTCODE]

Email: [EMAIL ADDRESS]

Dear [NAME],

I refer to your application made under the Right to Information Act 2009 (the Act) the following information:

[REQUESTED INFORMATION]

I am a Delegated Officer for the [MINISTER/PRINCIPAL OFFICER] under section 24 of the Act.

I have assessed the information responsive to your request and provide my decision below.

Assessment Summary

A search of the [MINISTER’S/DEPARTMENT’S] records has identified [NUMBER OF PAGES] of information relevant to the requirements of your request.

It is my decision that these pages are released in full to you with only the personal emails and mobile numbers of certain individuals not to be released.

The reasons for my decision are below.

Statement of Reasons

Personal Information of a person

Section 36 relevantly provides:

(1) Information is exempt information if its disclosure under this Act would involve the disclosure of the personal information of a person other than the person making an application under section 13.

I have determined that some of the information contains personal information of a person other than the person making the application and consider that this information is outside the requirements of your request.

In the alternative, the emails and mobile numbers of certain individuals are exempt under section 36 of the Act.

Section 36 is contained in Division 2 (exemptions subject to the public interest test) of the Act and is therefore subject to the public interest test. In accordance with section 33 of the Act, I must now assess whether the information is exempt information, after taking into account all relevant matters contained in Schedule 1 of the Act, that it is contrary to the public interest to disclose the information.

Public interest test

I have considered the application of the public interest test, as provided under section 33 of the Act, and the matters that must be considered under Schedule 1 of the Act, in deciding if the disclosure of the information is contrary to the public interest.

In my view, the disclosure of the information would harm the interests of the individuals concerned and would not further the general public need for government information to be accessible in any material way.

I confirm that I have not considered any matter contained in Schedule 2 of the Act.

Having considered the relevant matters, I find that disclosure of the information would be contrary to the public interest and the relevant information is exempt under section 36 of the Act.

Review

If you are dissatisfied with my decision, you have the right to seek an internal review under section 43 of the Act. You may do so by writing to [RELEVANT REVIEW OFFICER] at [POSTAL AND EMAIL ADDRESS] within 20 working days of receipt of this letter.

Please note that certain information released in response to Right to Information requests may be released here [LINK] within 48 hours of being released to the Applicant. Further information about this can be found at www.dpac.tas.gov.au/rti.

Should you have any questions in relation to this matter, please do not hesitate to contact me by email at [EMAIL ADDRESS].

Yours sincerely

[NAME SURNAME]

Delegated Officer

[DATE]

Appendix H: - Checklist for Processing an Application for Assessed Disclosure

Questions to ask yourself