Right to Information Act 2009 Training Presentation

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Right to Information Act 2009
Training Presentation
Prepared by:
Department of Justice
March 2010
Version 1.3
Disclaimer
This presentation has been prepared for registered attendees at RTI Implementation
sessions only
Although all due care has been taken in the preparation of the presentation, it is only to
be used as a guide and attendees are advised to carefully read the Right to Information Act
2009 and to seek their own specific advice as required.
The Crown in right of the State of Tasmania, its officers, employees and agents do not
accept liability however arising, including liability for negligence, for any loss resulting from
the use of or reliance upon any representation, statement, opinion or advice contained
within this presentation.
……everyone’s right to know
The Right to Information Act 2009
An outcome of the review of the Freedom of Information Act 1991
Your chance to understand the Right to Information Act 2009
Presented by:
Dale Webster
Please feel free to make notes
and
please ask questions
Module 1
Right to Information Overview
Introduction
In this module (the first of four) we will explore together the underlying concepts
in the Right to Information Act 2009 including:
• the fundamental principles.
• the key terms used.
• the types of disclosures defined and proactive disclosure.
• what happens when information is not available proactively.
•Relationship to other legislation.
(Current FOI, PIP Act and Archives Act)
Future modules go into the decision making processes related to assessed disclosure
and look at the Archives Office in some detail.
Defining the RTI Direction – the Objects
Section 3
The underlying aim of the Act - to improve the operation of democracy in the
State by increasing the accountability of Government to the people, and by
increasing the ability of the people to participate in government decision-making.
The underlying principle is that the information held by Tasmanian public
authorities of all kinds belongs to the people of the State, and has been collected
for them and on their behalf.
Everything in the Act should be read with this aim and principle in mind.
Fundamental considerations
It is central to understanding the RTI Act
that you keep in mind 4 key considerations:
1. Section 7 is central to the operation of the Act.
2. The Right is a right to information, not documents (S.5).
3. The Right does not extend to exempt information.
4. Assessed disclosure (similar to old style FOI requests)
follows all other types of disclosure.
What is information
Information is defined in Section 5
- it refers to every means by which we record words, figures,
letters or symbols and any means by which we lodge
information so we can reproduce it.
But it is then limited by defining “information in the possession
of…”(see section 5 also) which excludes :
•Information that does not relate to official business;
•Information only possessed for forwarding or collating to a
body which is not a public authority.
Who’s in
All “public authorities” are included.
• The
definition of "public authority“, is defined in Section 5 and
is wider than that of the expression "prescribed authority" in
the FOI Act.
• Inclusion of State-owned and council-owned companies.
.
Who’s out
Section 6 allows for exclusion of certain public
bodies and public authorities.
But Section 6 does not apply to the “administration” of the
relevant public authority.
For Example:
a court is excluded if a request relates to a judge’s notes on a
case, but not in respect of information about a request
regarding the cost of fixing the roof of the building.
Right to information – explanatory sections
Section 7 creates a general right to information which is then
explained in the sections which follow:
• (s8) Information provided by “outsourcing providers” is
included.
• (s9) Information that can be viewed in accordance with
another Act or which can be purchased is excluded.
•(s10) Access to information held electronically is limited in
some circumstances (see also Schedule 3).
* Routine searching of back up systems or for
information disposed of under Archives Act is not required.
•(s11) How access is gained to information of a Public
Authority which is in the Archives Office is outlined.
Proactive disclosure
A purpose of RTI is to avoid the formal, time consuming and
expensive process of making and responding to applications.
Section 12 creates the legislative requirement for principal
officers to design mechanisms to disclose information without
the need for these formal applications.
A proactive approach to the disclosure of information by
Government is sometimes referred to as a "push model".
The other side of this is that if the information is otherwise
available then a formal application can be refused without
further processing.
.
Required disclosure
Is disclosure which is required by law, including under an
enforceable agreement?
An example is the requirement to publish an annual report or
to publish a decision made under an enactment.
Routine disclosure
Is the disclosure of information which a public authority
decides may be of interest to the public?
Examples of this might be submissions in relation to a
proposal for statutory reform or publishing performance
data such as the DHHS Progress Chart or the Schools
Improvement Report.
Active disclosure
Is the disclosure of information in response to a request made
other than by way of an application for assessed
disclosure?
An example is the provision of information to someone in
response to a letter or phone call.
Assessed disclosure
An application for assessed disclosure is:
a formal application for information in the possession of a Minister
for release of information which is not otherwise available (s 13)
which leads to a formal decision (s 22) as to whether the
application should be granted.
Such a decision is open to review under Part 4 of the Act.
assessed disclosure should only occur as a last resort - public authorities and
Ministers are expected to put processes in place to make information freely
available to the public : s 12(3).
Making an application (s13)
The application:
• Must be in writing;
• Must contain a minimum level of information*;
• Does not have to be exact;
• Must be accompanied by a fee or request for waiver (s16).
Public Authorities must:
• Assist the person to make a complying application;
• Let potential applicants know about the processes in the
agency for dealing with assessed disclosure*; and
• Give a general outline of information held by the PA to
assist the person making the application in defining their
application.
*Regulations will be promulgated prior to commencement of the Act.
Negotiation
The application process in Section 13 is designed to assist
public authorities to understand what is being asked for by the
applicant by giving the applicant the best chance to define
what they are asking for…
It also recognises that sometimes
this will not happen and therefore allows for the public officer
to have a dialogue with the applicant and to negotiate an
understanding of what information the applicant would like to
have disclosed.
Passing on the application
The applicant will make their application to the Minister or
Public Authority that they believe holds the information they
would like disclosed.
Section 14 allows for the application to be transferred to a
Minister or Public Authority if the subject of the application
is more closely related to them than the Minister or Public
Authority which received the application.
All or part of the application can be transferred and the
originator of the transfer can also make information they
have available as part of the transfer.
Time limits
Application Accepted
Once fee paid or decision to waive
fee and
after negotiation period to a
maximum of 10 days (if required).
Notify Applicant of decision
As soon as practicable, but not later
than 20 days after application
accepted unless:
Applicant agrees to extend; or
Time extended on application to
Ombudsman (S15(4)(b)); or
Time extended to 40 days by need
to consult third party; or
Time further extended by third party
exercising right to review.
Deferment
You can defer disclosure of information beyond the time limits
if:
The information will become available within a maximum of 12
months from the date of an application as a required
disclosure or a routine disclosure;
or
If the information is to be presented to Parliament within 15
sitting days of the application of it being presented to the
Minister.
Section 17
Refusal
An application for assessed disclosure can be refused:
S12 – the information is otherwise available or will become
available as a required or routine disclosure within a
specified period not exceeding 12 months.
S19 – processing of the application will unreasonably divert
resources.
- Schedule 3 also relevant to this.
S20 – the application is a repeat application or vexatious or
remains lacking in definition.
Disclosing the information
Section 18 sets up the rules for providing information to an
applicant:
(1) Inspection, transcript, copy, hear or view.
(2) If exempt information deleted then a note to be included
that copy is not complete.
(3) If information relevant to application is embedded in other
information then information to be extracted.
(4) If information requested in a form which is a form which is
available then make it available that way.
(5) Some information may be provided via a “registered
medical practitioner” (see ss(6)).
Role of the Principal Officer (s23 and S24)
• Develop policies and procedures for their Public Authority
about RTI.
• Publish policy and procedures and details of how a person
exercises the right to information in respect of their Public
Authority.
• Publish annual list of information available as required or
routine disclosures.
• Publish annual details about assessed disclosures.
• May be assisted in above Make decisions on assessed disclosures and
internal reviews (also role of Minister)
May delegate decision making powers to any
person who is trained for up to 3 years (also role of
Minister)
Exemptions - Overview
The right provided by s 7 does not extend to "exempt
information".
This expression is defined by s 5, as meaning "information
which is exempt information by virtue of a provision of Part
3".
Part 3 contains two Divisions, which deal separately with two
different types of exempt information:
1. Those exempt by the nature of the information.
2. Those that are exempt if it can be shown that it is contrary
to the public interest.
Exemptions
Processing an assessed disclosure requires an assessment of
the information relevant to the application against the
legislation to see if the information contains exempt
information.
The exemptions are broadly the same as the FOI Act with
some language clarified and the Public Interest Test
standardised and detailed (S33 and Schedules 1 and 2).
Exemptions
Major Differences to FOI:
• Deliberative Information of an Agency now split into two
categories:
Internal Briefing Information (S27)
Internal Deliberative Information (S 35)
• Closed Meetings of Council moved into legislation.(s32)
Decisions - Overview
The decision must be made by an authorised person:
- the relevant Minister;
- the relevant principal officer; or
- a delegated officer.
The Decision maker is to act impartially.
Section 21
To deliberately obstruct or unduly influence the decision
maker is an offence.
To deliberately fail to disclose information which is not exempt
information is an offence.
Section 50
Decisions – Reasons
Written notice of decision is required if there is a decision that
•
•
•
some or all of the information is exempt information;
if application is deferred;
or if application is refused.
Written notice must state reasons, say who made decision
and outline review rights.
If relevant to the decision making then the reasons must also
state public interest factors relied on in decision making.
Not required to release exempt information, or confirm or deny
its existence via the reasons.
Section 22
Decisions - Review
Internal Review is similar to FOI Act, that is to the Principal
Officer or Minister if the decision was made by a delegated
officer - 15 working days to make decision
Section 43
On external review the powers of the Ombudsman are now
more directive and determinative.
Section 44
Intersection with the Personal Information Protection Act 2004
PIP Act has been amended.
Requires Personal Information Custodian to make information
available to the person who the information is about.
If the PIC refuses to release the information the person can
then make an application for assessed disclosure of the
information under the RTI.
Processing of the application is then under RTI Act with all
review rights.
Transition from FOI to RTI
A request for information lodged prior to the commencement
of the RTI Act (1 July 2010) will continue to be processed as
though the Freedom of Information Act 1991 is still in
operation.
This includes right to internal and external review and the
applicable timelines under that Act.
The Archives Act and Records Management
•It is essential RTI processes that Public Authorities have adequate
ability to maintain information and to search it.
•Public Authorities also have an extraordinary amount of information
in the Archives Office – a large proportion of which is already
available publicly.
•Disposal of records other than in accordance with the Archives Act
is an offence. (There are Guidelines to assist in understanding
“disposal”).
•Some information is disposed of as it fits a general category
defined by Archives, but most can only be disposed of in
accordance with a defined “disposal schedule”.
•Only information which is “disposed” of is outside of the RTI, that is
if it should have been and hasn’t it is still may be subject of an
assessed disclosure.
Information Security Frameworks
Some public authorities, including state service agencies,
have adopted, or are about to adopt, classification systems
where all information is given a classification based on the
level of security which should be placed on its treatment
and storage.
These systems are not related to exemptions, for instance
personal information should be stored with a high security
rating, but may be made available to the person it relates to
without a need for assessed disclosure
Summary
RTI Act encourages release of information without the need for formal
process – “push model”.
The RTI Act defines the types of disclosures which must be adopted by
Public Authorities and requires them to develop procedures for ensuring
greater disclosure of information without the need for applications from
the public.
More Public Authorities are included in the scope of the RTI act, including
all state and council owned companies.
There is still a mechanism for assessing information, but it should only be
used in rare circumstances.
The RTI also allows for a negotiation to refine the application, clarifies the
timeline for processing applications and allows for refusal of an
application in some circumstances.
The RTI Act acknowledges that there is still a small amount of information
which needs to be protected to ensure the proper functioning of
Government – “exempt information”.
The public interest test applying to some exemptions is defined within the
RTI Act.
Advice and Training in the future
Section 49: The Ombudsman will:
•Issue and maintain guidelines.
•Issue and maintain a Manual.
•Provide oral or written advice to Ministers or Public
Authorities.
And may publish decisions and reasons for decisions.
The Ombudsman is also likely to provide training on a fee for
service basis.
……everyone’s right to know
The Right to Information Act 2009
An outcome of the review of the Freedom of Information Act 1991
Your chance to understand the Right to Information Act 2009
Presented by:
Dale Webster
Please feel free to make notes
and
please ask questions
Module 2
Exploring the Exemptions
Introduction
In this module (the second of four) we will explore together Part 3 of the Right to
Information Act 2009 including:
•The broad types of exemptions
•How to apply the Public Interest Test
•The elements of each exemption
•Case Studies – your experiences
Future modules go into the writing decisions related to assessed disclosure and
look at the Archives Office in some detail.
Construction of Part 3
In addition there are two mostly discrete Divisions, which deal separately with two
different types of exempt information.
Division 1
• Deals with information which is exempt by its nature.
• Each section in it declares by its opening words that the
type of information with which it deals is exempt.
• Exemption in each of these cases is not subject to any
public interest test.
• There are eight exemptions in this Division, one of which
crosses over and has an element of “public interest”
applied (see s30).
Construction of Part 3
Division 2
As s 33(1) of the Act explains, deals with information which is
only exempt if the principal officer of the public authority or
Minister considers, after taking into account all relevant
matters, that it is contrary to the public interest to disclose the
information.
There are 9 exemptions in this Division.
The Public Interest Test
The "public interest" here refers to the wider public good, not
to what the public might find interesting.
S 33 explains how one determines whether it is contrary to the
public interest to disclose the information in question. The
decision-maker must •consider all relevant matters : s 33(1)
•consider all the matters in Schedule 1 : s 33(2)
•disregard as irrelevant all the matters in Schedule 2 : s 33(3).
The approach taken to the public interest in RTI Act is a major point of difference
between this Act and the Freedom of Information Act 1991.
Aligning with the Object
Note
Section 33 is founded on the principle that the disclosure of the
types of information covered by Division 2 of Part 3 must occur
unless this would be contrary to the public interest.
This is in line with the objects of the Act expressed in s 3.
Public Interest Schedules
•Schedule 1 – the non exhaustive list of factors which must be
considered – 25 factors are listed
• Schedule 2 – the list of factors that must not be considered
– 4 factors are listed
The RTI Act refers to these schedules in two places:
The main reference is in Section 33 as explained earlier, but
they are also to be used in respect of s30.
The exemption criteria
In considering the use of each exemption it is important to consider each
as a series of criteria – the exemptions may fall into one of four types:
1. To satisfy an exemption you must only show that the information meets the
description in the section. (for example - Section 26)
2. To satisfy an exemption you must show that the information meets both the
description in the section; and
Satisfy the “harm” factor in the section where there is an expectation of damage
if the documents were to be disclosed. ( for example – Section 29)
3. To satisfy an exemption you must show the information meets the description;
and be satisfied that disclosure would be contrary to the public interest. (for
example - Section 35)
4. To satisfy an exemption you must show all three elements, that is description,
harm factor and disclosure would be contrary to the public interest (for example
- Section 37)
Exemption criteria - Cabinet Information
This is Type 1 – Description of information only.
For a valid claim under Section 26 the information, usually a
document in this case, must be a record that:
•Is one of these:
• has been submitted to Cabinet for its consideration ( or a copy); or
• is proposed by a Minister to be so submitted (or a copy); or
• A record of a deliberation or decision which has not been officially
published;
•And is brought into existence for the purpose of submission for
consideration by Cabinet;
•And is not purely factual in nature;
•And if purely factual must not disclose a deliberation or decision of
Cabinet
•And is not more than 10 years since it was first considered by Cabinet.
Exemption Criteria – Affecting National Security et al
Type 2 – for example Section 29
Description = Any Information in the possession of a PA or
Minister
Harm test = would or would likely to
•
•
•
•
Endanger Security of Commonwealth, State or Territory; or
Endanger Defence of Commonwealth; or
Adversely affect International relations of Commonwealth; or
Divulge location of dangerous substances or dangerous goods.
Exemption Criteria – Internal Deliberative Information
Type 3 – Section 35
Description = Is one of:
• An opinion advice or recommendation prepared by an officer of PA; or
• A record of consultation between officers; or
• A record of consultation between officers and Ministers
Which is for the purpose of the deliberative processes related to the official
business of a PA, Minister or the Government;
And Is not purely factual information;
And is not a record of or a statement of reasons about a final decision,
ruling or order connected with an adjudicative function;
And was not created more than ten years ago.
And
Public Interest = The Information then is in the category, but whether it is
exempt or not requires that you establish that the release of the
documents is contrary to the public interest by including a balancing of
all public interest factors, whether in favour of or against the disclosure.
Exemption Criteria – Business Affairs of a third party
Type 4. Section 37
Description – information related to the business affairs of a
third party;
And
Harm Test – likely to expose the third party to competitive
disadvantage;
And
Public Interest Test - requires that you establish that the
release of the documents is contrary to the public interest
by including a balancing of all public interest factors,
whether in favour of or against the disclosure.
Consultation
Section 36 and 37 mandate
consultation with third parties and
then give those third parties review
rights.
These are administrative actions
we must follow before deciding the
harm test in each of these cases.
These processes extend timeline
by 20 days. Also information
cannot be released during review.
Section 36:
• Decide if you could reasonably expect
release to be of concern – if no, do not
consult – if yes and if practicable then
consult.
• 15 working days to respond - if no
response, proceed to decision, if
response, consider and provide them
with outcome.
Section 37:
•Decide if you could reasonably expect
release to be of concern – if no, do not
consult – if yes then consult about
“likely to expose third party to
substantial harm to competitive
position”.
• 15 working days to respond - if no
response, proceed to decision, if
response, consider and provide them
with outcome.
Executive Council – Section 25
Type One
• Is one of these:
• Official record of decision or deliberation of Governor or
Executive Council (or Copy); or
• A record prepared for the purpose of being submitted to the
Governor or Executive Council for consideration (or Copy); or
• A record of a deliberation or decision which has not been
officially published
• And is brought into existence for the purpose of submission
for consideration by the Executive Council or Governor;
• And is not purely factual in nature;
• And if purely factual must not disclose a deliberation or
decision of Executive Council or Governor
Internal Briefing Information of a Minister – Section 27
Type 1 – Must meet the defined description
Is one of:
• An opinion advice or recommendation prepared by an officer of PA
or a Minister; or
• A record of consultation between officers and Ministers
And which is created in the course of and for the purpose of
the briefing the Minister about official business of PA,
Minister or Government; or in connection with the Minsiter
parliamentary duty
And was brought into existence for submission to Minister for
a briefing
And Is not purely factual information;
And if purely factual must not disclose content of briefing;
And was not created more than ten years ago.
Information related to law enforcement – Section 30(1)
Information related to law enforcement - Section 30(2)(3)and (4)
Information Related to closed meetings of council – Section 32
This is Type 1 – Description of information only.
For a valid claim under Section 32 the information, usually a
document in this case, must be a record that:
• Is one of these:
•
•
•
•
the official record of a closed meeting of Council (CMOC)
has been submitted to CMOC for its consideration ( or a copy); or
is proposed by a Officer or Councillor to be so submitted (or a copy); or
A record of a deliberation or decision which has not been officially
published;
• And is brought into existence for the purpose of submission for
consideration by CMOC;
• And is not purely factual in nature;
• And if purely factual must not disclose a deliberation or decision of
CMOC;
• And is not more than 10 years since it was first considered by CMOC
• CMOC defined in Local Govt Regs.
Section 28 and 31
Both Type One and straight forward:
S 28 – Information held by Minister not related to official
business of Minister, eg minutes of local branch of party.
S 31 – Legal professional privilege, eg opinion from SG about
how to handle a defamation case. For this one you should
consult the lawyer who drew up the advice.
Information Communicated by other jurisdictions – Section 34
Personal information of person – Section 36
Information related to business affairs of a public authority – Section 38
Information obtained in confidence – Section 39
Type 4
Description:
Information divulged in confidence by a person or government
to a PA or Minister and
Not described in subsection (2)
AND
“harm factor”
Would be exempt if PA or Minister’s information or likely to
impair ability of PA ir Minister to obtain similar info in future.
AND
“public interest test”
Information on procedures and criteria used in certain negotiations – Section 40
Information likely top affect State economy – Section 41
Type 4 – three elements in deciding if information is exempt.
In the category, meets the harm test in Section and would
be contrary to the public interest:
Information about proposed action or inaction in the course of
or for the purpose of managing the State economy or part
there of.
AND
Likely to give any person unfair advantage or expose
someone to unfair advantage and would reasonably be
expected to effect the ability to manage the economy of the
State or any part of it.
AND
Disclosure would be contrary to the public interest
Information likely to affect cultural, heritage and natural resources – Section 42
Type 4 – three elements in deciding if information is exempt.
In the category, meets the harm test in Section and would
be contrary to the public interest:
Any Information
AND
In one of 4 categories of harm (a) or (b) or (c) or (d) of section
AND
Disclosure would be contrary to the public interest
Case Studies
Exploration of your cases
Summary
The RTI Act allows for assessed disclosure to allow for
assessment of the information against defined categories of
exemption as a last resort.
Exempt information falls into information exempt by nature
and information exempt only after an assessment results in
a decision that to disclose the information would be
contrary to the public interest.
To be exempt information the information must meet all
tests/administrative actions which apply in the relevant
section.
In applying the tests to decide if the information is exempt
information the decision maker must take into account the
object of the RTI Act.
……everyone’s right to know
The Right to Information Act 2009
An outcome of the review of the Freedom of Information Act 1991
Your chance to understand the Right to Information Act 2009
Presented by:
Dale Webster
Nicola Norton
Please feel free to make notes
and
please ask questions
Module 3
Writing Reasons
Introduction
In this module (the third of four) we will explore together Section 22 and Parts 4
and 5 of the Right to Information Act 2009 including:
•The reasoning process
•Putting reasons into writing
•Powers of the ombudsman on review
•Case Studies – your experiences
•The Other bits.
The final module looks at the Archives Office in some detail.
Reasoning
reasoning
• 1. the act or process of someone who reasons.
• 2. the process of drawing conclusions or inferences from
facts or premises.
• 3. the reasons, arguments, proofs, etc., resulting from
this process.
Bibliography: The Macquarie Dictionary Online © Macquarie Dictionary Publishers Pty Ltd
Reasoning
A good decision will have reasons that explain and justify it.
The key objectives of public administration and administrative
law hinge on decision makers basing their decisions on set
criteria and then being able to show how that was done.
Benefits of reasoned decision making
Fairness
- knowing why is basic individual right
Rationality
- achieved by looking closely at the relevant criteria
Transparency
- mystery and suspicion undermine integrity
Consistency
- comparison shows similarity and contrasts change
Accountability
- knowledge creates opportunity to question
Bibliography: Good Decision Making for Government – © Clayton Utz 1999
Putting your reasons in writing
Section 3 – the Object of RTI
Providing reasons for decision is wholly consistent with the
object of the legislation.
“by increasing the accountability…”
“…ability…to participate in their governance”
The easiest and fairest way to do that is to record your
reasons at the time you are making your decision.
Requirement for written reasons in RTI
Section 22
Section 43(5)
Section 47(1)(n)
Formal requirements – Section 22
The following elements constitute the formal statutory
requirements of a Statement of Reasons :
•
•
•
•
•
a notice in writing of the decision;
the name and designation of the decision maker;
the reasons for the decision to not disclose information,
refuse access or to defer access;
if the decision involves or relies upon consideration of the
public interest, state the public interest considerations on
which that decision was based; and
appropriate information about rights of review.
When is a statement of reasons required
In relation to a primary decision or a decision on internal review that:
the information is exempt from release
part of the information is exempt from release
access to the information has been deferred because it will become
available as a routine or required disclosure within the next 12 months
access to the information has been deferred because it will be tabled in
parliament
the application has been refused as it will substantially or unreasonably
divert the resources of a public authority from its other work
the application has been refused as it will interfere substantially or
unreasonably with the performance of a Minister other functions
the application is repeat application
the application is a vexatious application
the information has not been sufficiently identified following negotiations
Or as required by a direction of the Ombudsman.
Last resort
As assessed disclosure is required to be the type of
disclosure of last resort the statement may also
need to state the reasons why the information has
not been released by other defined forms of
disclosure
or
indeed released other than under the RTI Act.
What’s in written reasons?
A statement of reasons can follow a standard format – in
effect be modelled on a pro-forma or shell.
BUT
It must, however, be a genuine statement of the actual
reasons that were relied upon at the time the decision was
made
The Shell – 1. The Decision
•
•
The decision that has been made should be accurately
described.
Refer to relevant sections of RTI Act.
- “I am refusing this application for assessed disclosure in accordance
with Section 12 subsection (3)(c)(i) of the Right to information Act 2009
(the RTI Act) as it is information which is otherwise available.”
•
Refer to relevant sections of other legislation.
- ”I am prevented from releasing the personal details of the person
who made this statement as to do so would be a breach of Section 16
of the Child, Young Persons, and their Families Act 1997”
•
Outlines special conditions (if any).
- “In accordance with the discretion provided by Section 18 of the RTI
Act I am releasing this information to the applicant by way of inspection
of the information at our offices ……”
The Shell – 2. The Decision-Maker
RTI decisions should only be made by persons who are
properly authorised under section 21 of the RTI Act to do
so.
The Statement of Reasons for a decision must state the name
and designation of the person who made the decision.
The Statement of Reasons should refer to the authorisation
details.
For example:
- “This decision was made by Dale Webster, a delegated officer of the
principal officer of the Department of Justice, appointed by an
instrument of delegation in accordance with section 24 of the Right to
Information Act 2009.”
The Shell – 3. The process
This outlines the main steps by which you take in coming to
your decision it needs to include the application of the
legislative criteria, the regulations (if required) and the
guidelines (if required).
The process by which you make the decision is the process
by which you apply the criteria.
“I was unable to find information related to the application in on our current
records system and there is no reference to the information in our
publications or on our website, however I undertook a search of the
Archives Office Open Access system and located all of the information
which forms part of this application, therefore I am refusing this
application for assessed disclosure in accordance with Section 12
subsection (3)(c)(i) of the Right to information Act 2009 (the RTI Act) as
it is information which is otherwise available.”
The exemption criteria - reminder
As we know from exploring the exemptions we must consider each
exemption as a series of criteria
The exemptions may fall into one of four types:
1. To satisfy an exemption you must only show that the information meets the
description in the section.
2. To satisfy an exemption you must show that the information meets both the
description in the section; and
Satisfy the “harm” factor in the section where there is an expectation of damage
if the documents were to be disclosed.
3. To satisfy an exemption you must show the information meets the description;
and be satisfied that disclosure would be contrary to the public interest.
4. To satisfy an exemption you must show all three elements, that is description,
“harm” factor and disclosure would be contrary to the public interest
Refer to Handout 1
Section 39. Information obtained in confidence:
Type 3
Description:
Information divulged in confidence by a person or government
to a PA or Minister and
Not described in subsection (2)
AND
“harm factor”
Would be exempt if PA or Minister’s information or likely to
impair ability of PA ir Minister to obtain similar info in future.
AND
“public interest test”
The Shell – 4. The main facts and findings
You need to state the main factual basis for a decisions
Either self evident or inferences
“the findings on material questions of fact”
For each inference the evidence to support it should be set
out
The final point is to check the facts and findings against the
legislation to ensure only relevant matters are considered.
The Shell – 5. The Reasons
The statement needs to fulfil its purpose of informing the
person why a decision was made.
Stating reasons drawn from the evidence, the facts and the
findings is a way of concluding the statement or bringing it
together.
This may be explaining that based on the facts as found only
one conclusion can be reached for example, it is Cabinet
information as described.
Or
It may be a choice open to a balancing of the factors you have
found as in a choose between Public Interest Factors
Refer Handout 2
The Shell – 6. The right of review
The applicant must be given ‘appropriate’ information
concerning the applicant’s rights of review of the decision
and the procedure for the exercise of those rights. This
includes information for internal review and external review.
• the name, location, postal and the telephone and facsimile numbers, of
the review authority
• how applications for review are to be made and any time limits applying
to them
• any time limits within which the review authority must review the
decision
• whether or not a particular level of review constitutes a statutory
prerequisite to any further review.
This might be a separate statement, or embedded in reasons, or embedded in a
covering letter.
Putting it all together: Refer Handout 3
Application Received – what for?
Criteria for decision
Fee or waived?
Facts and Findings
Transferred or part transferred?
Evidence
Other from of disclosure?
Reasons
Negotiation? and outcome
Legislation
Search result
Decision
Decision Maker
Review Rights
A schedule
The Ombudsman prefers that the information which is relevant
to the application be outlined in a schedule.
Commenced at search stage and completed at decision stage.
For complex or multi-faceted applications it will help you in ensuring that
your reasons are complete.
Not a substitute for a full and complete statement of reasons
Headings:
•Date of information
•File/folio (or other location) reference
•Creator/Author/Addressee of each piece of information where
applicable
•Brief description of each piece of information
•Decision on disclosure
•Summary reasons for decisions
Case Study
In pairs examine the case study and fill in the blanks in the
Statement of Reason.
Report back:
Decision
Key facts/Findings
Reasons
Internal Review – Section 43
Application for review
Decision
Principal Officer
Application made within 20 working
days of receipt of a notice of
decision under Section 22
As soon as possible – but before 15
working days have elapsed
(44(1)(b)(ii)
Review and make a fresh decision
External Party application within 10
working days of receipt of notice
under Section 36(3) or 37(3)
Internal review can be undertaken
by a delegated officer
Written notice of outcome in same
way as original decision
External Review – Section 44
Application for external Review following internal review can
be made within 20 days of:
• Receipt of decision on internal review
Or
• 15 working days elapsing from making of application for
external review
Other applications for Review – Section 45
a) Section 43 does not apply
b) Decision information not in existence
c) Decision to give access other than as requested (not
copyright)
d) Decision information not in possession
e) Belief, on reasonable grounds, that insufficient search
f) Time has expired on original decision
Within 20 days if notice of decision given
Also – decision not to consult or adversely affected by
outcome of internal review.
Review where decision delayed – Section 46
Time expired as defined in Section 15 then decision taken to
be made on last day of relevant timeframe
Therefore must make application for external review within 20
days of that last day
If a decision is then made by PA or Minister then application
can be treated as an application to review that decision
PA or Minster can ask for extension of time, which if granted
by Ombudsman can be granted with conditions
Powers of the Ombudsman – Section 47
Are extensive including:
• Direct the PA or Minister to make a decision if one not
made in time
• Direct an internal review if one not undertaken
• Early Resolution
• Make decision that could be made by PA or Minister
• Decline to review, if vexatious, lacks substance or not
actively progressed
• Decline to continue if applicant refuses direction
• Direct better reasons
• Direct PA implement decision on a review
• Can decide review if onus of proof is not discharged
Decision of the Ombudsman – Section 48
Must consult PA or Minister prior to finalising adverse decision
May consult other parties
Once finalised may only reconsider to correct accidental
mistake or omission
Must provide a statement of reasons
Must not disclose exempt information
May or may not confirm or deny existence of information
Part 5
Advice and Training in the future:
Section 49: The Ombudsman will:
•Issue and maintain guidelines.
•Issue and maintain a Manual.
•Provide oral or written advice to Ministers or Public
Authorities.
And may publish decisions and reasons for decisions.
The Ombudsman is also likely to provide training on a fee for
service basis.
Part 5
Section 50 – Offences
Section 51 – Protection against actions for defamation or
breach of confidence
Section 52 – Protection in respect of criminal offences under
other Acts
Section 53 – Reporting
Section 54 – Regulations
Section 55,56 and 58 – Administration, Legislation repealed
and rescinded
Summary
Handout 4 – Checklist for statement of reasons
Application for internal review must be received within 20 days
of decision and must be completed within 15 days of receipt
Application for external review must be received within 20
days of decision on internal review.
Some matters not subject of internal review may still be
reviewable by Ombudsman
Ombudsman has extensive powers to resolve reviews
……everyone’s right to know
The Right to Information Act 2009
An outcome of the review of the Freedom of Information Act 1991
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