What is RTI?

Section 7 of the Right to Information Act 2009 creates a legally enforceable right to information in the possession of public authorities and Ministers unless it is exempt information, often referred to as RTI.  The Right to Information Act replaced the Freedom of Information Act 1991 (FOI), but some other states and territories, and the Commonwealth still refer to FOI.  There is, ultimately, not much difference between the two.

The RTI process is the mechanism for people to access information that is not otherwise available to them.  The right to information contained in s7 furthers the object of the Act contained in s3, which is to improve democratic government in Tasmania by:

  • increasing the accountability of the executive to the people;
  • increasing the ability of the people to participate in their governance; and
  • acknowledging that information collected by public authorities is collected for and on behalf of the people and is the property of the state.

What is information for the purposes of RTI?

Information includes many things and is not only documents. A document will contain information, but information can also exist in other forms.  This is not always well understood and Ombudsman Tasmania has published a guideline, Distinguishing Between Information and a Document (PDF, 125.6 KB).

The Act defines information in s5 as:

  • anything by which words, figures, letters or symbols are recorded and includes a map, plan, graph, drawing, and photograph; and
  • anything in which information is embodied so as to be capable of being reproduced.

This definition covers practically anything a public authority could create and can include phone messages, databases, and things such as CCTV.

How does the RTI process work?

The Act refers to four types of disclosure:

  • assessed disclosure - a disclosure of information made in response to a formal application in accordance with s13;
  • active disclosure - a disclosure of information in response to a request from a person made otherwise than as a request for assessed disclosure;
  • required disclosure - a disclosure where the information is required to be published by the RTI Act or any other Act, or where disclosure is otherwise required by law or enforceable under an agreement; and
  • routine disclosure - a disclosure of information by a public authority which the public authority decides may be of interest to the public, but which is not a required disclosure, an assessed disclosure or an active disclosure.

What we are concerned with here is assessed disclosure - if a public authority holds information that is not otherwise available to you, an application for assessed disclosure may allow you to access it.  Each public authority will have an application form available for use – if you wish to make an application for information, check the authority’s website or phone and request a form.

Once you have submitted a valid application, the public authority will look at the scope of your request and find any information it holds that is relevant.  An important thing to note is that RTI is relevant to information held by a public authority, not necessarily information it owns.  Once it has collated the information responsive to your request, it must then determine whether it will release the information to you, or if it considers it appropriate, to exempt some or all of that information relying on one or more of the exemption provisions contained in the Act.

The basis for relying on any exemptions must be justified in a decision; the decision should contain reasons which explain to you why it is said that the exemption applies.  If you are not satisfied or do not agree that the exemption applies to the information, then you can request a review.  In most cases, an internal review of the decision will be made, and if you are still not happy with the outcome you can ask Ombudsman Tasmania to review it.  We are the only and final place you can go for an external review of a decision on an application for assessed disclosure.

What is an exemption?

If an exemption validly applies to information you have requested, you are not entitled to it.  The provisions relating to exemptions are in Part 3 of the Act, which covers ss25 to 42, and there are 17 grounds for claiming information to be exempt.  Each exemption provision contains a series of requirements which must be met before information will be exempt.

Some exemptions are absolute (those contained in Division 1 of Part 3), while others give rise to prime facie exemption but are subject to a public interest test (Division 2).  This means that, even though information might meet the requirements for exemption contained in a particular section, it will only truly by exempt if the public authority or Minister considers that it would be contrary to the public interest to release it.  If it is in the public interest to release the information, then it should be released to you.

Exemptions that are not subject to the public interest test include exemptions for:

  • executive council information;
  • cabinet information;
  • internal briefing information of a Minister;
  • information affecting national or state security, defence or international relations; and
  • information relating to enforcement of the law.

Exemptions that are subject to the public interest test include those relating to:

  • personal information of a person;
  • information relating to business affairs of a third party;
  • information relating to business affairs of a public authority;
  • information obtained in confidence;
  • Information likely to affect cultural, heritage and natural resources of the State.

Who can I request information from?

You can request information from a public authority or a Minister.  A public authority is defined in s5 of the Act as:

  • an agency within the meaning of the State Service Act 2000;
  • the Police Service;
  • a local government council;
  • a statutory authority;
  • a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose;
  • a body whose members, or a majority of its members, are appointed by the Governor or a Minister of the Crown;
  • a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995;
  • a council-owned company: or
  • a State-owned company.

Is it possible to ask for too much information?

Technically, no – you can request as much information as you like.  Practically speaking, however, there is the possibility that if you request too much information, the public authority might refuse to provide it relying on the provisions of s19 of the Act.

Section 19 allows a public authority or Minister to refuse your application if the work involved in providing the information requested –

  • would substantially and unreasonably divert the resources of the public authority from its other work; or
  • would interfere substantially and unreasonably with the performance by that Minister of the Minister's other functions.

If a public authority or Minister is considering a refusal under s19, you must be given a reasonable opportunity to consult the public authority or Minister with a view to being helped to make an application in a form that would remove the ground for refusal.

This is designed to give you a practical and reasonable opportunity to understand why dealing with your request may be a substantial and unreasonable diversion of resources and to negotiate with the authority or Minister.  It is then up to you whether you think your request is still a reasonable one and you wish to persist with it, or whether you are prepared to revise your application to reduce the work required to process it and remove the grounds for refusal.

Is there anything I am not allowed to ask for?

You are entitled to request anything in the possession of the public authority or Minister.

You only have a right to information, however, that is not exempt information, and the Act contains a number of exemptions that allow a public authority or Minister to withhold information from you if it is appropriate to do so.  While the object should always be to release as much information as possible, the exemptions are there for a purpose and there are legitimate reasons why they may be relied on from time to time.

So, while there is no limit on what you can ask for, there may be limits on what you can get.

For example, you might request the personal information of any person you like, but if you have no legitimate reason to access that information, it is likely to be exempt.

Another example might arise in a commercial context. Often information is provided to an authority in confidence, or it might relate to the business affairs of a third party or even the business affairs of the authority.  These are all potential bases for exempting information.

Can I request information from any Member of Parliament?

No, only public authorities and members of parliament who are Ministers are subject to the Act.  The Act defines a Minister as a person responsible for the administration of an agency and it is information in their possession that can be requested. A Minister is more than a member of the back bench and has a specific area, or specific areas of responsibility as a member of Cabinet. You can request information from Ministers, but you cannot request information from other Government members or members of the Opposition.

Are there any public authorities I am not entitled to request information from?

Yes.  The Act excludes information in the possession of 17 named public authorities or bodies from its operation unless that information relates to the administration of the body or authority.  Operational information relating to the actual work that authority or body carries out is excluded.  The relevant bodies and authorities are listed in s6.  They are:

  • the Governor
  • 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 Auditor-General
  • the State Service Commissioner
  • the Anti-Discrimination Commissioner
  • the Public Guardian
  • the Health Complaints Commissioner
  • Parliament
  • a Member of Parliament
  • the Commissioner for Children

Can I request information from a private organisation?

No, you cannot.  The RTI Act only applies to information in the possession of public authorities and Ministers.

Having said that, there are many private organisations funded by or performing a role of a public authority.  If that is the case, s8 of the Act provides that a person is entitled to information related to –

  • that performance;
  • the progress of work;
  • the evaluation of work; or
  • the expenditure of public moneys.

This is still, however, limited to information in the possession of the public authority that is not exempt information – you are not entitled to access it directly from the private organisation. To access this information, you submit your application to the public authority that has funded that private organisation or on whose behalf it is performing a role.

How long does it take to get a decision?

The Act sets out clear timeframes for the processing of an RTI application by a public authority or Minister.  Timeframes vary, however, depending on which stage of the process is being undertaken.  The following timeframes are those contained in the Act, but they can be changed  by negotiation in some circumstances.  The following timeframes run from the moment your application has been accepted:

  • the original decision on your application must be made within 20 working days of its acceptance
  • an internal review decision must be made within15 working days of you requesting it.
  • sometimes a third party might need to be consulted by an authority which can increase the time frame for a decision by another 20 working days: and
  • a decision on external review   is to be completed as soon as practicable after receipt of the application

Third party consultations in two circumstances: where the information is the personal information of another person or it is related to a third party’s business affairs.  If a public authority or Minister is of the view that a third party in either of these situations would be reasonably concerned about the release of the information, then consultation occurs and the additional 20 working days are added.

What if the timeframe has expired and I haven’t been given a decision?

If this occurs, the public authority or Minister is taken by the Act to have made a decision to decline to release the information requested to you.  This is referred to as a deemed refusal.

This is not necessarily indicative of what the public authority or Minister has actually determined to do, but it provides a way for you to engage this office to ensure that your application continues to be addressed.  It is a protection for you against the inaction of a public authority or Minister leading to non-compliant delay in the processing of your application and the denial of your right to information.

In this case, if the timeframe has expired, you can request an external review and the Ombudsman will then have oversight of your application. The Ombudsman can also directly liaise with the public authority or Minister in order to get a decision released to you as soon as practicable.

How much does it cost?

The Act sets an application fee of 25 fee units. The fee units go up on I July every year.  As at 1 July 2019, a fee unit is $1.62 making the application fee $40.50.

Can the application fee be waived?

Yes, in certain circumstances.  There are three situations where the fee might be waived, where:

  • you are impecunious/experiencing financial hardship;
  • you are a Member of Parliament acting in connection with your official duty; or
  • you are able to show that you intend to use the information for a purpose that is of general public interest or benefit.

You can find the request for a fee waiver on the application form from the relevant public authority.

We have published a guideline in relation to fee waiver - Guideline in relation to charges for information (PDF, 80.1 KB).

Do I have to use the official application form?

No, you don’t.  It is, however, probably in your best interests to do so.  Before an application can be accepted by a public authority, it must meet the minimum requirements as set out in the regulations, and the application fee must be paid or a waiver granted.  Forms created by public authorities have been specifically designed to ensure that the minimum requirements are met if they are filled out correctly.  So a good way to confirm that you are making a valid application is to use an official application form.

If your application does not meet all of the minimum requirements, there may be unnecessary delays in processing it.

What happens with reviews in a public authority or Minister’s office?

Public Authority

If you receive the original decision and it has been made by a delegated officer, you can request an internal review if you are not satisfied with it.  To do this, write or email the public authority, address your request to the Secretary, CEO, or General Manager of that authority, and request an internal review under s43.

The principal officer of the authority or a delegated officer other than the original decision maker, must make a fresh decision on your application.  If you are still not happy you can request an external review by the Ombudsman.

Minister

If a delegate of the Minister has made the decision, there is no right of review under the Act.  Ombudsman Tasmania is of the view that this situation arises as the result of a drafting error in the Act but it nonetheless prevents you from requesting and this office from undertaking a review of the decision of a Minister’s delegate.

Decision other than by delegated officer

If the original decision on your request is made by the Minister him or herself or by the principal officer of a public authority (Secretary, CEO, or General Manager), then you can request an external review by Ombudsman Tasmania because, the decision having come from the authority’s most senior officer or the Minister her or himself, there is no one who can internally review it.

What happens with reviews in Ombudsman Tasmania?

If you have received an internal review decision or an original decision made by a Minister or principal officer directly and you are not happy with it, you can request an external review of the decision by Ombudsman Tasmania.

An external review will consist of this office seeking all information from the public authority or Minister responsive to the request, not just the information you might already have received. Submissions and other relevant information will be sought from either you or the public authority or Minister, or all the parties.

Once all the relevant information has been received, a substantive review will be conducted of the information claimed to be exempt, and an assessment made as to whether it actually meets the requirements for exemption.  The information will be considered by reference to the Act, the submissions and reasons why that information should be exempt will be evaluated, and we will then determine whether the information is exempt or whether it should be released, in whole or in part.

The Ombudsman does not advocate for any party to a review but will applies the Act objectively in the circumstances of the particular request, having regard to the object of the Act, its purpose, and express terms.

How do I apply for a review?

Internal Review

An internal review should be sent to the relevant Minister, Secretary, CEO, or General Manager seeking an internal review. The initial decision is required to provide you with advice as to your review rights, and relevant details and timeframes related to the exercise of those rights.  If it does not, or you are still unsure, please feel free to contact the public authority or Minister, or you can contact this office.

External review

You can request an external review by filling out the application form (PDF, 84.8 KB) on our website.