Queensland: Information Privacy Act 2009 (Qld)

Information Privacy Act 2009 An Act to provide safeguards for the handling of personal information in the public sector environment, and to allow access to and amendment of personal information Chapter 1 Preliminary Part 1 Introductory 1 Short title This Act may be cited as the Information Privacy Act 2009. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Object of Act (1) The primary object of this Act is to provide for— (a) the fair collection and handling in the public sector environment of personal information; and (b) a right of access to, and amendment of, personal information in the government's possession or under the government's control unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended. (2) The Act must be applied and interpreted to further the primary object. 4 Act not intended to prevent other accessing or amendment of personal information (1) This Act is not intended to prevent or discourage the giving of access to, or allowing the amendment of, documents otherwise than under this Act if the giving of access or the allowing of amendment can properly be done or is permitted or required to be done by law. (2) To remove any doubt, it is declared that subsection (1) applies to— (a) the giving of access to, or allowing the amendment of, documents that are not documents for chapter 3 or documents to which the privacy principles do not apply; or (b) the giving of access to, or allowing the amendment of, documents by— (i) an entity that is not an entity for chapter 3; or (ii) an entity to which the privacy principles do not apply; or (iii) an entity to which the privacy principles do not apply in relation to a particular function. 5 Relationship with other Acts requiring access to or amendment of personal information Without limiting section 4, this Act does not affect the operation of another Act, and chapter 3 does not affect the operation of an administrative scheme, whether or not under an Act, that— (a) requires information about personal information in the possession, or under the control, of government to be made available to members of the community; or (b) enables an individual to be given access to or to amend the individual's personal information in the possession, or under the control, of government; whether or not on payment of a charge. 6 Scope of personal information under this Act This Act applies to the collection of personal information, regardless of when it came into existence, and to the storage, handling, accessing, amendment, management, transfer, use and disclosure of personal information regardless of when it was collected. 7 Relationship with other Acts prohibiting disclosure of information (1) Chapter 3 overrides the provisions of other Acts prohibiting the disclosure of personal information (however described). Notes— 1 The Parliament considers that personal information the disclosure of which is prohibited under a provision of an Act mentioned in the Right to Information Act, schedule 3, section 12 is information the disclosure of which would, on balance, be contrary to the public interest—see the Right to Information Act, section 44(2)(a), as applied under this Act, and schedule 3, section 12 of that Act. 2 This information is called exempt information and, under the Right to Information Act, section 47(3)(a), as applied under this Act, an agency or Minister may refuse access to a document to the extent the document comprises exempt information. 3 However, an agency or Minister may give access to a document even if this Act provides that access to the document may be refused—see section 64(4). (2) Other than as provided for in subsection (1), this Act is intended to operate subject to the provisions of other Acts relating to— (a) the collection, storage, handling, accessing, amendment, management, transfer, and use of personal information; and (b) the disclosure, within the meaning of section 23, of personal information. 8 Relationship with other Acts regulating disposal of information This Act does not affect the provisions of other Acts regulating the disposal of information (however described). 9 Relationship with Right to Information Act (1) The Right to Information Act also provides for access to documents of an agency or Minister. (2) If, on its face, an access application made under the Right to Information Act could have been made under this Act, the Right to Information Act, section 34 applies. Notes— 1 Under the Right to Information Act, section 34— (a) the applicant is given an opportunity to have the application dealt with under this Act and the application fee refunded; or (b) the application may be continue to be dealt with as an application under the Right to Information Act. 2 To facilitate this situation, the approved form for an access application under the Right to Information Act is the same as the approved form for an access application under this Act and agencies will make appropriate administrative arrangements. 3 If the applicant asks for the application to be dealt with under this Act, the applicant is taken to have made the application under this Act on the date of the request—see the Right to Information Act, section 34(3)(a). 10 Act binds State This Act binds the State. Part 2 Interpretation 11 Definitions The dictionary in schedule 5 defines particular words used in this Act. 12 Meaning of personal information Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 13 Meaning of document of an agency for ch 3 For chapter 3, document, of an agency, means anything that is a document of an agency under the Right to Information Act. 14 Meaning of document of a Minister for ch 3 For chapter 3, document, of a Minister means anything that is a document of a Minister under the Right to Information Act. 15 Meaning of document otherwise For this Act, other than for chapter 3, a document does not include a document to which the privacy principles do not apply. 16 Meaning of document to which the privacy principles do not apply In this Act, a document to which the privacy principles do not apply means a document mentioned in schedule 1. 17 Meaning of agency for ch 3 For chapter 3, agency means anything that is an agency under the Right to Information Act. 18 Meaning of agency otherwise (1) For this Act, other than for chapter 3, an agency means— (a) a Minister; or (b) a department; or (c) a local government; or (d) a public authority. (2) However, for this Act other than for chapter 3, agency does not include an entity to which the privacy principles do not apply. (3) For this Act— (a) a board, council, committee, subcommittee or other body established by government to help, or to perform functions connected with, an agency is not a separate agency, but is taken to be comprised within the agency; and (b) a reference to an agency includes a reference to a body that is taken to be comprised within the agency; and (c) a reference to local government includes a reference to the Wide Bay Water Corporation. 19 Meaning of entity to which the privacy principles do not apply In this Act, an entity to which the privacy principles do not apply means— (a) an entity mentioned in schedule 2, part 1; or (b) an entity mentioned in schedule 2, part 2 in relation to the function mentioned in that part. 20 Special provision about application of Act other than ch 3 to a Minister (1) If a provision of this Act applies to a Minister, the provision applies only for acts done, or practices engaged in, as the case may be, in the Minister's capacity as a Minister in relation to the affairs of an agency administered by the Minister. (2) Subsection (1) does not apply to chapter 3, or to any other provision of this Act to the extent it applies for the purposes of chapter 3. 21 Meaning of public authority (1) In this Act, public authority means any of the following entities— Note— Under the Acts Interpretation Act 1954, schedule 1— entity includes a person and an unincorporated body. (a) an entity— (i) established for a public purpose by an Act; or (ii) established by government under an Act for a public purpose, whether or not the public purpose is stated in the Act; (b) an entity created by the Governor in Council or a Minister; (c) another entity declared by regulation to be a public authority for this Act, being an entity— (i) supported directly or indirectly by government funds or other assistance or over which government is in a position to exercise control; or (ii) established under an Act; or (iii) given public functions under an Act; (d) subject to subsection (3), a person holding an office established under an Act; (e) a person holding an appointment— (i) made by the Governor in Council or Minister otherwise than under an Act; and (ii) declared by regulation to be an appointment the holder of which is a public authority for this Act. (2) A prescribed entity is not a public authority in relation to documents received, or created, by it in performing a function other than the public function given under an Act. (3) A person is not a public authority merely because the person holds— (a) an office the duties of which are performed as duties of employment as an agency's officer; or (b) an office of member of a body; or (c) an office established under an Act for the purposes of an agency. (4) In this section— prescribed entity means an entity that is a public authority only because it is given public functions under an Act and is declared by regulation to be a public authority for this Act. 22 Meaning of processing period and transfer period for ch 3 For chapter 3— processing period, for an access or amendment application to an agency or Minister— 1 The processing period is a period of 25 business days from the day the application is received by the agency or Minister. 2 However, the following periods do not count as part of the processing period— (a) if the application is transferred to the agency or Minister—the transfer period; (b) if the agency or Minister asks the applicant for a further specified period under section 55(1)—the period during which, under section 55(3), the agency or Minister may continue to consider the application; (c) if the application involves consultation with a relevant third party under section 56—10 business days; (d) if the applicant is given a notice under section 61(1)(a)—the prescribed consultation period under section 61. transfer period, for an access or amendment application, means the lesser of the following periods— (a) the period starting on the day the application is received by the agency or Minister who transfers the application and ending on the day the application is transferred; (b) the period of 10 business days. 23 What it means to disclose personal information and to use personal information (1) This section applies for the application of the privacy principles. (2) An entity (the first entity) discloses personal information to another entity (the second entity) if— (a) the second entity does not know the personal information, and is not in a position to be able to find it out; and (b) the first entity gives the second entity the personal information, or places it in a position to be able to find it out; and (c) the first entity ceases to have control over the second entity in relation to who will know the personal information in the future. (3) An entity uses personal information if it— (a) manipulates, searches or otherwise deals with the information; or (b) takes the information into account in the making of a decision; or (c) transfers the information from a part of the entity having particular functions to a part of the entity having different functions. (4) Subsection (3) does not limit what actions may be use of the personal information. (5) However, use of the personal information does not include the action of disclosing the personal information to another entity. 24 Meaning of control of a document For the application of the privacy principles, an entity has a document under its control if the entity has the document in its possession or otherwise has the document under its control. 25 References to IPPs and NPPs (1) If a provision of this Act refers to an IPP by a number, the reference is a reference to the section of schedule 3 having that number. (2) If a provision of this Act refers to an NPP by a number, the reference is a reference to the section of schedule 4 having that number. Chapter 2 Privacy principles Part 1 Compliance with IPPs by agencies 26 Information Privacy Principles The Information Privacy Principles are set out in schedule 3. 27 Agencies to comply with IPPs (1) An agency, other than health agencies, must comply with the IPPs. Note— Under section 18, an agency includes a Minister, a department, a local government or a public authority. However, section 20 provides that for the application of this Act, other than chapter 3, or this Act other than for the purposes of chapter 3, to a Minister, the Act applies only for acts done, or practices engaged in, as the case may be, in the Minister's capacity as a Minister in relation to the affairs of an agency administered by the Minister. (2) Without limiting subsection (1), the agency— (a) must not do an act, or engage in a practice, that contravenes, or is otherwise inconsistent with a requirement of, an IPP; and (b) must not fail to do an act, or fail to engage in a practice, if the failure contravenes, or is otherwise inconsistent with a requirement of, an IPP. (3) An act or practice mentioned in subsection (2) includes any act or practice relating to the agency's collection, storage, handling, accessing, amendment, management, transfer, use or disclosure of personal information. 28 Noncompliance with particular IPPs (1) An agency is not required to comply with a prescribed IPP in relation to an individual's personal information if the information is related to or connected with personal information of the individual that has previously been published, or given for the purpose of publication, by the individual. (2) In this section— prescribed IPP means IPP 8, 9, 10 or 11. Editor's note— IPP 8 (Checking of accuracy etc. of personal information before use by agency), 9 (Use of personal information only for relevant purpose), 10 (Limits on use of personal information) or 11 (Limits on disclosure) publish, for personal information, means to publish it to the public by way of television, newspaper, radio, the internet or other form of communication. 29 Special provision for law enforcement agencies (1) A law enforcement agency is not subject to IPP 2, 3, 9, 10 or 11, but only if the law enforcement agency is satisfied on reasonable grounds that noncompliance with the IPP is necessary for— (a) if the enforcement agency is the Queensland Police Service—the performance of its activities related to the enforcement of laws; or (b) if the enforcement agency is the Crime and Corruption Commission—the performance of its activities related to the enforcement of laws and its intelligence functions; or (c) if the enforcement agency is the community safety department—the containment, supervision and rehabilitation of offenders under the Corrective Services Act 2006 and the supervision of prisoners subject to supervision orders or interim supervision orders under the Dangerous Prisoners (Sexual Offenders) Act 2003; or (d) if the enforcement agency is any other law enforcement agency—the performance of its responsibility mentioned in schedule 5, definition law enforcement agency, paragraph (b)(iv), including the conduct of proceedings started or about to be started in a court or tribunal in relation to the responsibility. (2) In this section— intelligence functions means the functions mentioned in the Crime and Corruption Act 2001, section 53. Part 2 Compliance with NPPs 30 National Privacy Principles The National Privacy Principles are set out in schedule 4. Editor's note— The principles set out in schedule 4 are called the National Privacy Principles in this Act because of their correspondence to the National Privacy Principles set out in the Privacy Act 1988 (Cwlth), schedule 3. The NPPs, rather than the IPPs, are applied to health agencies under this chapter because of particular arrangements applying nationally to health agencies, corresponding entities in other Australian jurisdictions and the private health sector. 31 Health agencies to comply with NPPs (1) Health agencies must comply with the NPPs. (2) Without limiting subsection (1), health agencies— (a) must not do an act, or engage in a practice, that contravenes, or is otherwise inconsistent with a requirement of, an NPP; and (b) must not fail to do an act, or fail to engage in a practice, if the failure contravenes, or is otherwise inconsistent with a requirement of, an NPP. (3) An act or practice mentioned in subsection (2) includes any act or practice relating to a health agency's collection, storage, handling, accessing, amendment, management, transfer, use or disclosure of personal information. 32 Noncompliance with particular NPPs (1) Health agencies are not required to comply with a prescribed NPP in relation to an individual's personal information if the information is related to or connected with personal information of the individual that has previously been published, or given for the purpose of publication, by the individual. (2) In this section— prescribed NPP means— (a) NPP 2; or (b) NPP 3, but only in relation to use or disclosure of personal information; or (c) NPP 9(4). Editor's note— NPP 2 (Limits on use or disclosure of personal information), 3 (Data quality) or 9 (Sensitive information) publish, for personal information, means to publish it to the public by way of television, newspaper, radio, the internet or other form of communication. Part 3 Transfer of personal information outside Australia 33 Transfer of personal information outside Australia An agency may transfer an individual's personal information to an entity outside Australia only if— (a) the individual agrees to the transfer; or (b) the transfer is authorised or required under a law; or (c) the agency is satisfied on reasonable grounds that the transfer is necessary to lessen or prevent a serious threat to the life, health, safety or welfare of an individual, or to public health, safety or welfare; or (d) 2 or more of the following apply— (i) the agency reasonably believes that the recipient of the personal information is subject to a law, binding scheme or contract that effectively upholds principles for the fair handling of personal information that are substantially similar to the IPPs or, if the agency is a health agency, the NPPs; (ii) the transfer is necessary for the performance of the agency's functions in relation to the individual; (iii) the transfer is for the benefit of the individual but it is not practicable to seek the agreement of the individual, and if it were practicable to seek the agreement of the individual, the individual would be likely to give the agreement; (iv) the agency has taken reasonable steps to ensure that the personal information it transfers will not be held, used or disclosed by the recipient of the information in a way that is inconsistent with the IPPs or, if the agency is a health agency, the NPPs. Part 4 Compliance with parts 1 to 3 by contracted service providers 34 Meaning of service arrangement (1) In this Act, a service arrangement is a contract or other arrangement entered into after the commencement of this section under which an entity other than an agency (the contracted service provider) agrees or otherwise arranges with an agency (the contracting agency) to provide services. (2) For subsection (1)— (a) the services must be for the purposes of the performance of 1 or more of the contracting agency's functions; and (b) the services must be provided either— (i) directly to the contracting agency; or (ii) to another entity on the contracting agency's behalf; and (c) the contracted service provider must not be in the capacity of employee of the contracting agency in providing the services. 35 Binding a contracted service provider to privacy principles (1) An agency entering into a service arrangement must take all reasonable steps to ensure that the contracted service provider is required to comply with part 1 or 2 and part 3, as if it were the agency, in relation to the discharge of its obligations under the arrangement. (2) However, the agency must comply with subsection (1) only if— (a) the contracted service provider will in any way deal with personal information for the contracting agency; or (b) the provision of services under the arrangement will involve— (i) the transfer of personal information to the contracting agency; or (ii) the provision of services to a third party for the contracting agency. (3) The agency is not required to comply with subsection (1) if— (a) the contracted service provider is to receive funding from the contracting agency; and (b) the contracted service provider will not collect personal information for the contracting agency; and (c) the contracted service provider will not receive any personal information from the contracting agency for the purposes of discharging its obligations; and (d) the contracted service provider will not be required to give the contracting agency any personal information it collects in discharging its obligations. (4) Subsections (1) to (3) are not intended to limit what may be provided for in a service arrangement about the contracted service provider's collection, storage, handling, accessing, amendment, management, transfer, use or disclosure of personal information, whether or not the contracted service provider is a bound contracted service provider. 36 Bound contracted service provider to comply with privacy principles (1) A bound contracted service provider under a service arrangement must comply with part 1 or 2 and part 3 in relation to the discharge of its obligations under the arrangement as if it were the entity that is the contracting agency. (2) The requirement to comply under subsection (1) continues to apply to the bound contracted service provider in relation to personal information it continues to hold after its obligations under the service arrangement otherwise end. (3) A bound contracted service provider's compliance with part 1 or 2 and part 3 may be enforced under this Act as if it were an agency. (4) Subsections (1) to (3) are not intended to prevent a service arrangement from including a requirement for the contracted service provider to comply with all or part of the privacy principles even though this part does not require that the service arrangement include the requirement. 37 Contracting agency to comply with privacy principles if contracted service provider not bound (1) This section applies if a contracted service provider under a service arrangement is not a bound contracted service provider because the contracting agency under the service arrangement did not take the steps required of it under section 35. (2) The obligations that would attach to the contracted service provider if it were a bound contracted service provider attach instead to the contracting agency under the arrangement. Part 5 Provision of information to Ministers 38 Personal information relevant to portfolio responsibilities An agency does not contravene the requirement under this Act that it comply with the IPPs or NPPs only because it gives personal information to a Minister to inform the Minister about matters relevant to the Minister's responsibilities in relation to the agency. Part 6 Miscellaneous 39 Nature of rights created by pts 1 to 3 (1) Except as provided for under the procedures set out in this Act, an obligation imposed on an entity under part 1, 2 or 3 does not— (a) give rise to any civil cause of action; or (b) operate to create in any person any legal right enforceable in a court or tribunal. (2) Subsection (1) does not limit chapter 5. Chapter 3 Disclosure and amendment by application under this Act Part 1 Right to access and amendment 40 Right to be given access to particular documents (1) Subject to this Act, an individual has a right to be given access under this Act to— (a) documents of an agency to the extent they contain the individual's personal information; and (b) documents of a Minister to the extent they contain the individual's personal information. Notes— 1 See part 2 for how to exercise this right to access. 2 Exclusions of the right are provided for under the Right to Information Act, chapter 3, part 4 (which provides particular circumstances where an entity may refuse to deal with an application) and section 67 (which applies the Right to Information Act, section 47 which in turn provides grounds on which an entity may refuse access). 3 A limitation on the right is provided for under section 88 (which provides that, in particular circumstances, an entity may delete irrelevant information from a document before giving access). (2) Subsection (1) applies to documents even if they came into existence before the commencement of this Act. Note— Section 47 deems an access application to apply only to documents that are, or may be, in existence on the day the application is received. 41 Right to amend personal information in particular documents (1) Subject to this Act, an individual has a right under this Act to amend, if inaccurate, incomplete, out of date or misleading— (a) documents of an agency to the extent they contain the individual's personal information; and (b) documents of a Minister to the extent they contain the individual's personal information. Notes— 1 See part 2 for how to exercise this right to amend. 2 Exclusions of the right are provided for under section 46 (which provides an amendment application may not be made to the information commissioner), part 4 (which provides particular circumstances where an entity may refuse to deal with an application) and section 72 (which provides grounds on which an entity may refuse amendment). (2) Subsection (1) applies to documents even if they came into existence before the commencement of this Act. 42 Other ways of accessing or amending personal information Personal information may be accessed or amended other than by application under this chapter. Examples— 1 A document may be accessed under administrative arrangements made by an agency. 2 A public service employee may access his or her employee record by application. 3 A document may be commercially available. Part 2 Access and amendment applications 43 Making access application (1) An individual who wishes to be given access to a document of an agency or a document of a Minister under this Act to the extent it contains the individual's personal information may apply to the agency or Minister for access to the document. Notes— 1 Minister is defined to include an Assistant Minister—see schedule 5. 2 Section 45 provides for access applications by parents for children and section 196 clarifies the powers of those acting for others. 3 For an application made for a person, the person (and not the agent) is the applicant—see schedule 5, definition applicant. (2) The access application must— (a) be in the approved form; and (b) give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and (c) state an address to which notices under this Act may be sent to the applicant. (3) Also, the applicant must provide with the application or within 10 business days after making the application— (a) evidence of identity for the applicant; and (b) if an agent is acting for the applicant—evidence of the agent's authorisation and evidence of identity for the agent. Examples of an agent's authorisation— • the will or court order appointing the agent to act as the applicant's guardian • the client agreement authorising a legal practitioner to act for an applicant • if the application is made in reliance on section 45, evidence the agent is the child's parent (4) In this section— evidence of identity means the evidence of identity prescribed under a regulation. 44 Making amendment application (1) An individual who has had access to a document of an agency or a document of a Minister, whether or not under this Act, may apply to the agency or Minister for amendment of any part of the individual's personal information contained in the document that the individual claims is inaccurate, incomplete, out of date or misleading. Notes— 1 Minister is defined to include an Assistant Minister—see schedule 5. 2 Section 45 provides for amendment applications by parents for children and section 196 clarifies the powers of those acting for others. (2) For subsection (1), the reference to an individual who has had access to a document includes a reference to an individual whose agent has had access to the document. (3) Without limiting how an agent may be authorised for this section in relation to an applicant who is deceased, an agent may include— (a) an eligible family member of the deceased person; or (b) a person the agency or Minister considers has an appropriate interest in the amendment of the personal information. (4) The amendment application must— (a) be in the approved form; and (b) provide sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and (c) state an address to which notices under this Act may be sent to the applicant; and (d) state the information the applicant claims is inaccurate, incomplete, out of date or misleading; and (e) state the way in which the applicant claims the information to be inaccurate, incomplete, out of date or misleading and the grounds for the applicant's claim; and (f) if the applicant claims the information to be inaccurate or misleading—state the amendments the applicant claims are necessary for the information to be accurate or not misleading; and (g) if the applicant claims the information to be incomplete or out of date—state the other information the applicant claims is necessary to complete the information or to bring it up to date. (5) Also, the applicant must provide with the application or within 10 business days after making the application— (a) evidence of identity for the applicant; and (b) if an agent is acting for the applicant—evidence of the agent's authorisation and evidence of identity for the agent. Examples of an agent's authorisation— • the will or court order appointing the agent to act as the applicant's guardian • the client agreement authorising a legal practitioner to act for an applicant • if the application is made in reliance on section 45, evidence the agent is the child's parent (6) In this section— evidence of identity means the evidence of identity prescribed under a regulation. 45 Making access or amendment applications for children (1) Without limiting the ability of persons to make access or amendment applications for children, an access or amendment application may be made for the child by the child's parent. Note— 1 Section 196 clarifies the powers of those acting for others. 2 For an application made for a child, the child (and not the parent) is the applicant—see schedule 5, definition applicant. (2) In this section— child means an individual who is under 18 years. parent— 1 Parent, of a child, means any of the following persons— (a) the child's mother; (b) the child's father; (c) a person who exercises parental responsibility for the child, including a person who is granted guardianship of the child under the Child Protection Act 1999 or who otherwise exercises parental responsibility for the child under a decision or order of a federal court or a court of a State. 2 However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child. 3 A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child. 4 A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child. 46 Access or amendment application may not be made to commissioner (1) An access or amendment application may not be made or transferred to the information commissioner, other than in relation to personal information of the staff of the OIC. (2) An access or amendment application may not be made or transferred to the RTI commissioner or the privacy commissioner. 47 Application for documents then existing (1) An access application is taken only to apply to documents that are, or may be, in existence on the day the application is received. (2) However, subsection (1) does not prevent an agency or Minister giving access to a document created after the application is received but before notice is given under section 68 (a post-application document). (3) If the agency or Minister gives an applicant access to a post-application document— (a) no access charge is payable in relation to the document; and (b) the applicant is not entitled to review under this Act of a decision about the document made in relation to the application. 48 Application for metadata (1) An access application for a document is taken not to include an application for access to metadata about the document unless the access application expressly states that it does. (2) If an access application for a document expressly states that access to metadata about the document is sought, access to the metadata does not need to be given unless access is reasonably practicable. (3) In this section— metadata, about a document, includes information about the document's content, author, publication date and physical location. 49 Application not for backup system documents (1) An access application, however expressed, for a document does not require an agency or Minister to search for the document from a backup system. (2) However, subsection (1) does not prevent an agency or Minister searching for a document from a backup system if the agency or Minister considers the search appropriate. Note— While a search for a document from a backup system is not generally required before refusing access on the ground that the document is non-existent or unlocatable, a search is required in the particular circumstances mentioned in the Right to Information Act, section 52(2), as applied under this Act. Part 3 Dealing with application Division 1 Decision-maker 50 Decision-maker for application to agency (1) An access or amendment application to an agency must be dealt with for the agency by the agency's principal officer. (2) The agency's principal officer may delegate the power to deal with the application to another officer of the agency. (3) Also, for an agency other than a local government, the agency's principal officer may, with the agreement of another agency's principal officer, delegate the power to deal with the application to the other agency's principal officer. (4) The principal officer of the other agency may subdelegate a power delegated to him or her under subsection (3). Note— Under the Acts Interpretation Act 1954, section 27A(2), a delegation may be revoked, wholly or partly, by the delegator. Accordingly, a delegation may be revoked before a decision is made in a particular case and the delegator may make the decision. (5) However— (a) a principal officer may not, under subsection (2) or (4) delegate the power to deal with the application to the extent it involves— (i) making a healthcare decision; or (ii) appointing a healthcare professional under paragraph (b); but (b) the agency may appoint an appropriately qualified healthcare professional to make a healthcare decision in relation to the application. (6) In this section— healthcare decision means a decision about any of the following matters— (a) whether disclosure to the applicant of relevant healthcare information about the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant under the Right to Information Act, section 51, as applied under this Act; (b) whether to refuse access under the Right to Information Act, section 47(3)(d), as applied under this Act; (c) whether to give access despite being able to refuse access under the Right to Information Act, section 47(3)(d), as applied under this Act; (d) whether to give a direction under section 92(2); (e) whether to approve a healthcare professional under section 92(2). power to deal, with an access or amendment application, includes power to deal with an application for internal review in relation to the access or amendment application. Examples of dealing with an application for internal review— • making a new decision under section 94(2) • giving notice under section 97(3) 51 Decision-maker for application to Minister (1) An access or amendment application to a Minister may be dealt with by the person the Minister directs, either generally or in a particular case. (2) However— (a) the Minister may not direct the person to deal with the application to the extent it involves— (i) making a healthcare decision; or (ii) appointing a healthcare professional under paragraph (b); but (b) the Minister may appoint an appropriately qualified healthcare professional to make a healthcare decision in relation to the application. (3) In this section— deal, with an access or amendment application, includes deal with an application for internal review in relation to the access or amendment application. Examples of dealing with an application for internal review— • making a new decision under section 94(2) • giving notice under section 97(3) healthcare decision see section 50. Division 2 Preliminary contact with applicant 52 Application outside scope of Act (1) This section applies if— (a) a person purports to make an application under this chapter to an entity for access to or to amend a document; and (b) the entity decides the application is outside the scope of this Act for 1 or more of the following reasons— (i) the document is not a document of an agency, or a document of a Minister, for this chapter; (ii) the entity is not an agency for this chapter; (iii) the application is made to the information commissioner, RTI commissioner or privacy commissioner. (2) Within 10 business days after the purported application is received, the entity must give prescribed written notice to the applicant of the decision. 53 Noncompliance with application requirement (1) This section applies if— (a) a person purports to make an access or amendment application for a document to an agency or Minister; and (b) the application does not comply with all relevant application requirements for the application. (2) The agency or Minister must make reasonable efforts to contact the person within 15 business days after the purported application is received and inform the person how the application does not comply with a relevant application requirement. (3) An agency or Minister must not refuse to deal with an application because it does not comply with all relevant application requirements without first giving the applicant a reasonable opportunity to consult with a view to making an application in a form complying with all relevant application requirements. (4) The applicant is taken to have made an application under this Act if and when the application is made in a form complying with all relevant application requirements. (5) Subsection (4) does not limit section 52. (6) If, after giving the opportunity mentioned in subsection (3) and any consultation, an agency or Minister decides the application does not comply with all relevant application requirements, the agency or Minister must, within 10 business days after making the decision, give the applicant prescribed written notice of the decision. (7) In this section— relevant application requirement means— (a) for an access application—a matter set out in section 43(2) or (3) that is required for the application; or (b) for an amendment application—a matter set out in section 44(4) and (5) that is required for the application. 54 Access application not limited to personal information (1) This section applies if, on its face, an access application purportedly made under this Act should have been made under the Right to Information Act because the application is for access to a document other than to the extent it contains the applicant's personal information. (2) The agency or Minister must make reasonable efforts to contact the applicant within 15 business days after the application is received and inform the applicant that— (a) the application is not an application that can be made under this Act; and (b) the application could have been made under the Right to Information Act upon payment of the application fee payable under that Act; and (c) the applicant may consult with the agency or Minister with a view to— (i) making an application under this Act by changing the application; or (ii) having the application dealt with under the Right to Information Act by paying the application fee. (3) An agency or Minister must not refuse to deal with an application purportedly made under this Act without first giving the applicant a reasonable opportunity to consult as mentioned in subsection (2)(c). (4) If the application fee is paid, the applicant is taken to have made the application under the Right to Information Act on the date of the payment. (5) However— (a) the application continues to be dealt with as an application under this Act if, after the opportunity mentioned in subsection (3) is given and any consultation happens, the applicant does not either change the application, or pay the fee, as mentioned in subsection (2)(c); and (b) the agency or Minister must again consider whether the application is an application that can be made under this Act and, within 10 days of deciding that matter, give the applicant prescribed written notice of the decision. 55 Longer processing period (1) At any time before a deemed decision is taken to have been made in relation to an access or amendment application, the agency or Minister may ask the applicant for a further specified period to consider the application. (2) Additional requests for further specified periods may be made under subsection (1). (3) The agency or Minister may continue to consider the application and make a considered decision in relation to it only if— (a) the agency or Minister has asked the applicant for a further specified period under subsection (1); and (b) the applicant has not refused the request; and (c) the agency or Minister has not received notice that the applicant has applied for review. (4) If a considered decision is made, the considered decision replaces any deemed decision for the purposes of this Act. Note— The agency or Minister must give notice of the considered decision under section 65 or 70 and the considered decision is potentially subject to internal review and external review. Division 3 Contact with relevant third party 56 Disclosure of concern to third party (1) An agency or Minister may give access to a document that contains information the disclosure of which may reasonably be expected to be of concern to a government, agency or person (the relevant third party) only if the agency or Minister has taken the steps that are reasonably practicable to obtain the views of the relevant third party about whether— (a) the document is a document for this chapter; or (b) the information is exempt information or contrary to public interest information. (2) If disclosure of information may reasonably be expected to be of concern to a person but for the fact that the person is deceased, subsection (1) applies as if the person's representative were a relevant third party. (3) If— (a) the agency or Minister obtains the views of the relevant third party and the relevant third party considers— (i) the document is not a document for this chapter; or (ii) the information is exempt information or contrary to public interest information; but (b) the agency or Minister decides— (i) the document is a document for this chapter; or (ii) the information is not exempt information or contrary to public interest information; the agency or Minister must— (c) give prescribed written notice of the decision of the agency or Minister to the applicant and the relevant third party; and (d) defer giving access to the document until after— (i) the agency or Minister is given written notice by the relevant third party that it does not intend to make any application for review under this Act; or (ii) if notice is not given under subparagraph (i) and no application for review under this Act is made by the end of the review period—the end of the review period; or (iii) if an application for review is made by the end of the review period—the review has ended (whether because of an informal resolution or because of a decision of the entity conducting the review). (4) The agency or Minister must give the applicant written notice when access is no longer deferred under subsection (3)(d). (5) In this section— representative, in relation to a deceased person, means the deceased person's eligible family member, or, if 2 or more persons qualify as the deceased person's eligible family member, 1 of those persons. review period means the period within which any application for review under this Act may be made. Division 4 Transfers 57 Transfer of access or amendment application (1) In this section— agency includes a Minister. (2) An agency to which an access or amendment application has been made (the original agency) may transfer the application to another agency if— (a) the document to which the application relates is not in the original agency's possession but is, to the original agency's knowledge, in the other agency's possession; and (b) the other agency consents to the transfer. (3) An application that is transferred from 1 agency to another agency is taken to have been made to the other agency. (4) If— (a) an application is made to an agency for access to or amendment of more than 1 document; and (b) 1 or more of the documents is a document mentioned in subsection (2)(a); this section applies to each of the documents as if separate access or amendment applications had been made to the agency for each of the documents. Part 4 Refusal to deal with access or amendment application 58 Pro-disclosure bias and pro-amendment bias in deciding to deal with applications (1) It is the Parliament's intention that if an access or amendment application is made to an agency or Minister, the agency or Minister should deal with the application unless this would not be in the public interest. (2) Sections 59, 60 and 62 state the only circumstances in which the Parliament considers it would not be in the public interest to deal with an access application. (3) Section 60 states the only circumstances in which the Parliament considers it would not be in the public interest to deal with an amendment application. (4) However, it is the Parliament's intention that this Act should be administered with a pro-disclosure bias and pro-amendment bias and an agency or Minister may deal with an access or amendment application even if this Act provides that the agency or Minister may refuse to deal with the application. 59 Exempt information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. 60 Effect on agency's or Minister's functions (1) An agency or Minister may refuse to deal with an access or amendment application, or, if the agency or Minister is considering 2 or more access or amendment applications by the applicant, all the applications, if the agency or Minister considers the work involved in dealing with the application or all the applications would, if carried out— (a) substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or (b) interfere substantially and unreasonably with the performance by the Minister of the Minister's functions. (2) Without limiting the matters to which the agency or Minister may have regard in making a decision under subsection (1), the agency or Minister must have regard to the resources that would have to be used— (a) in identifying, locating or collating any document in the filing system of the agency or the Minister's office; or (b) for an access application—in deciding whether to give, refuse or defer access to any documents, or to give access to an edited copy of any documents, including resources that would have to be used— (i) in examining any document; or (ii) in consulting in relation to the application with a relevant third party under section 56; or (c) in making a copy, or edited copy, of any document; or (d) in notifying any final decision on the application. (3) In deciding whether to refuse, under subsection (1), to deal with an access or amendment application, an agency or Minister must not have regard to— (a) any reasons the applicant gives for applying for access or amendment; or (b) the agency's or Minister's belief about what are the applicant's reasons for applying for access or amendment. 61 Prerequisites before refusal because of effect on functions (1) An agency or Minister may refuse to deal with an access or amendment application under section 60 only if— (a) the agency or Minister has given the applicant a written notice— (i) stating an intention to refuse to deal with the application; and (ii) advising that, for the prescribed consultation period for the notice, the applicant may consult with the agency or Minister with a view to making an application in a form that would remove the ground for refusal; and (iii) stating the effect of subsections (2) to (6); and (b) the agency or Minister has given the applicant a reasonable opportunity to consult with the agency or Minister; and (c) the agency or Minister has, as far as is reasonably practicable, given the applicant any information that would help the making of an application in a form that would remove the ground for refusal. (2) Following any consultation, the applicant may give the agency or Minister written notice either confirming or narrowing the application. (3) If the application is narrowed, section 60 applies in relation to the changed application but this section does not apply to it. (4) If the applicant fails to consult after being given notice under subsection (1), the applicant is taken to have withdrawn the application at the end of the prescribed consultation period. (5) Without limiting subsection (4), the applicant is taken to have failed to consult if, by the end of the prescribed consultation period, the applicant has not given the named officer or member written notice under subsection (2). (6) In this section— prescribed consultation period, for a written notice under subsection (1)(a), means— (a) the period of 10 business days after the date of the notice; or (b) the longer period agreed by the agency or Minister and the applicant whether before or after the end of the 10 business days mentioned in paragraph (a). 62 Previous application for same documents—access application (1) This section applies if— (a) an applicant makes an access application, whether under this Act or the Right to Information Act, to an agency or Minister (the first application); and (b) the applicant makes another access application under this Act (the later application) to the same agency or Minister for access to 1 or more of the same documents sought under the first application and the later application does not, on its face, disclose any reasonable basis for again seeking access to the document or documents. (2) For subsection (1)(a)— (a) the first application, if made under this Act— (i) does not include an access application taken to have been withdrawn under section 61(4); and (ii) if an access application has been narrowed under section 61—means only the access application as changed; and (b) the first application, if made under the Right to Information Act— (i) does not include an access application taken to have been withdrawn under section 42(4) of that Act; and (ii) if an access application has been narrowed under section 42 of that Act—means only the access application as changed. (3) The agency or Minister may refuse to deal with the later application to the extent it is for access to a document or documents sought under the first application if— (a) when the later application was made, the agency or Minister had not decided the first application; or (b) in relation to the first application if made under this Act— (i) the applicant had been given notice under section 68 that access was to be given to the document sought or to some or all of the documents sought; or (ii) the agency or Minister had decided that the application was for a document to which this chapter does not apply; or (iii) the agency or Minister had decided the document or documents sought were documents access to which was refused under section 67; or (iv) the agency or Minister had refused to deal with it under this part; or (c) in relation to the first application, if made under the Right to Information Act— (i) the applicant had been given notice under section 54 of that Act that access was to be given to the document sought or to some or all the documents sought; or (ii) the agency or Minister had decided that the application was for a document to which that Act does not apply; or (iii) the agency or Minister had decided the document or documents sought were documents access to which was refused under section 47 of that Act; or (iv) the agency or Minister had refused to deal with it under chapter 3, part 4 of that Act; or (d) the agency's or Minister's decision on the first application— (i) is the subject of a review and the review is not complete; or (ii) has been the subject of a completed review (other than an internal review). (4) For subsection (3), if a document sought under the later application is merely a record of the first application having been made (a record document), access to a record document is taken to have been sought under the first application. (5) For subsection (3)(d)— review means— (a) an internal review under this Act or the Right to Information Act; or (b) an external review under this Act or the Right to Information Act; or (c) a proceeding under part 11 or under the Right to Information Act, chapter 3, part 11. (6) For subsection (3)(d), a review is complete if the review has ended because of an informal resolution or because of a decision of the entity conducting the review. 63 Previous application for same documents—amendment application (1) This section applies if— (a) an applicant makes an amendment application to an agency or Minister (the first application); and (b) the applicant makes another amendment application (the later application) to the same agency or Minister for amendment of 1 or more of the same documents sought to be amended under the first application and the later application does not, on its face, disclose any reasonable basis for again seeking the amendment of the document or documents. (2) For subsection (1)(a), the first application— (a) does not include an amendment application taken to have been withdrawn under section 61(4); and (b) if an amendment application has been narrowed within the meaning of section 61—means only the application as changed. (3) The agency or Minister may refuse to deal with the later application to the extent it is for amendment of a document or documents sought to be amended, under the first application if— (a) when the later application was made, the agency or Minister had not decided the first application; or (b) in relation to the first application— (i) the applicant had been given notice under section 73 that amendment was to be allowed for the document sought to be amended or for some or all of the documents sought to be amended; or (ii) the agency or Minister had decided that the application was for a document to which this chapter does not apply; or (iii) the agency or Minister had decided the document or documents sought to be amended were documents amendment of which was refused under section 72; or (iv) the agency or Minister had refused to deal with it under this part; or (c) the agency's or Minister's decision on the first application— (i) is the subject of a review and the review is not complete; or (ii) has been the subject of a completed review (other than an internal review). (4) For subsection (3)(c), review means— (a) an internal review; or (b) an external review; or (c) a proceeding under part 11. (5) For subsection (3)(c), a review is complete if the review has ended because of an informal resolution or because of a decision of the entity conducting the review. Part 5 Decision Division 1 Access applications 64 Pro-disclosure bias in deciding access to documents (1) It is the Parliament's intention that if an access application is made to an agency or Minister for a document, the agency or Minister should decide to give access to the document unless giving access would, on balance, be contrary to the public interest. (2) The purpose of this part is to help the agency or Minister decide whether giving access would, on balance, be contrary to the public interest by— (a) setting out in the Right to Information Act, schedule 3, as applied under this Act, types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest; and (b) setting out in the Right to Information Act, section 49, as applied under this Act, the steps, and in schedule 4 of that Act, as applied under this Act, factors, for deciding, for other types of information, whether disclosure would, on balance, be contrary to the public interest. (3) Also, the Right to Information Act, sections 50 and 51, as applied under this Act, set out circumstances concerning information about a child and personal healthcare information about an applicant in which the Parliament has stated its intention about what is in the best interests of the child and applicant. (4) However, it is the Parliament's intention that this Act should be administered with a pro-disclosure bias and an agency or Minister may give access to a document in relation to an applicant's personal information even if this Act provides that access to the document may be refused. 65 Considered decision on access application If a person makes an access application for a document to an agency or Minister, the agency or Minister must— (a) after considering the application, make a decision (a considered decision)— (i) whether access is to be given to the document; and (ii) if access is to be given—whether any access charge must be paid before a