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Right to Information Act 2009 (No. 70 of 2009)
|Requested: 28 Oct 2016|
|Consolidated as at: 29 Feb 2012|
PART 4 - Review of Decisions
43. Internal review
(1) If a decision in respect of an application made to a public authority for information has been made by a delegated officer, the applicant may, within 20 working days after notice of the decision is given to the applicant in accordance with section 22, apply to the principal officer of the public authority for a review of the decision.
(2) If the external party may within 10 working days of the receipt of the notice apply to the principal officer of the public authority for a review of the decision.
(a) a decision to provide information relating to the personal affairs of a person referred to in section 36 has been made by a delegated officer; and
(b) notice of the decision has been given to an external party in accordance with section 36(3)
(3) If the external party may within 10 working days of the receipt of the notice apply to the principal officer of the public authority for a review of the decision.
(a) a decision to provide information that is likely to expose an external party to competitive disadvantage has been made by a delegated officer under section 37; and
(b) notice of the decision has been given to the external party in accordance with section 37(3)
(4) If an application for a review of a decision is made to the principal officer in accordance with subsection (1), (2) or (3), the principal officer must as soon as practicable
(a) review the decision and make a fresh decision; or
(b) arrange for a delegated officer, other than the delegated officer who made the decision, to review the decision and make a fresh decision.
(5) A decision on a review under this section in respect of an application made under section 13 is to be given in the same manner as a decision in respect of the original application.
44. Application for external review
(1) A person or external party may apply to the Ombudsman under this section for a review of a decision in relation to which section 43(1), (2) or (3) applies if
(a) the person or external party has made an application for internal review under section 43(1), (2) or (3) in relation to the decision; and
(i) the person or external party has been informed of the result of the review; or
(ii) 15 working days have elapsed since the application was made.
(2) The application referred to in subsection (1) must be made within 20 working days of an event referred to in subsection (1)(b).
45. Other applications for review
(1) A person who has applied for information in accordance with section 13 may also apply to the Ombudsman for a review of a decision if
(a) the decision which may otherwise be the subject of an application for an internal review under section 43 has been made by a Minister or principal officer of a public authority and as a consequence the applicant cannot make an application under section 43; or
(b) a Minister or public authority has made a decision that the information requested was not in existence on the day the application was made; or
(c) a Minister or public authority has made a decision to give access other than in the form requested by the applicant, except where to do so would breach copyright; or
(d) a Minister or public authority has decided that the information requested is not in the possession of the Minister or public authority; or
(e) following a decision being made by a Minister or public authority, the applicant believes, on reasonable grounds, that there is an insufficiency in the searching for the information by the Minister or public authority; or
(f) notice of a decision on an application under section 13 has not been received by the applicant and the period specified in, or calculated under, section 15 has elapsed.
(2) If person has applied for information in accordance with section 13, another person may apply to the Ombudsman for review if
(a) a Minister or public authority has decided not to consult the person under section 36(2) or section 37(2) and the person believes that he or she is a person who was required to be consulted; or
(b) a decision has been made on a review under section 43 and a person, other than the person who applied for the review, is adversely affected by the decision.
(3) If a notice of a decision has been given under this Act, an application referred to in subsection (1) must be made within 20 working days of the day on which the applicant received notice of the decision.
46. Review where decisions delayed
(1) If the principal officer of the public authority or the Minister is, for the purpose of enabling an application to be made to the Ombudsman under section 45, to be taken to have made, on the last day of the relevant period, a decision refusing to grant the application.
(a) an application has been made to a public authority or Minister under section 13; and
(b) the period provided in section 15 has elapsed; and
(c) notice of a decision on the application has not been received by the applicant
(2) If the Ombudsman may, at the request of the applicant, treat the application as extending to an application for review of that decision in accordance with section 45.
(a) by virtue of this section an application has been made to the Ombudsman under section 45 but the Ombudsman has not made a decision on the application; and
(b) a decision, other than a decision to grant the request, is given by the public authority or Minister
(3) Before further considering an application made under section 45 by virtue of this section, the Ombudsman may, on the application of the Minister or principal officer of the public authority concerned, allow the Minister or public authority further time to deal with the request.
(4) The Ombudsman may allow a public authority or a Minister further time in accordance with subsection (3), subject to such conditions as the Ombudsman thinks fit.
47. Powers of Ombudsman
(1) The Ombudsman has the following powers when considering an application for review:
(a) to decide on the form and content of an application for review;
(b) to decide on the process for dealing with the review;
(c) to examine witnesses;
(d) to administer an oath or affirmation before examination of a witness;
(e) to direct a decision be made by a public authority or Minister if a decision has not been made within the time specified in, or calculated under, section 15;
(f) to direct an internal review, if one has not already been completed;
(g) to identify opportunities for early resolution, including conciliation;
(h) to promote settlement of the review application;
(i) to decide the parties involved in the review;
(j) to make any enquiries necessary to determine the review or to decide if to proceed to review;
(k) to decide any matter in relation to the original application for assessed disclosure that could be decided by the public authority or Minister to whom the application was made;
(l) to decline an application for review that is vexatious, lacks substance or is not actively progressed by the applicant;
(m) to decline to continue to review an application where the applicant fails to comply with the directions of the Ombudsman in connection with the progress of the review;
(n) to direct a public authority to provide better reasons for a decision, within a period of 10 working days, including if necessary a schedule of information relevant to the application;
(o) to give direction on the procedure to be followed on review;
(p) to direct that his or her decision is to be implemented by the public authority within a period of 20 working days or such lesser period determined by the Ombudsman;
(q) to give directions to a party to a review, related to the conduct of the review.
(2) The Ombudsman
(a) has full and free access to the records of a public authority or Minister that are related to an application for review and may require that access to be in a particular form; and
(b) may make application to the Supreme Court on a question of law.
(3) The Ombudsman does not have power to investigate a matter under the Ombudsman Act 1978 if that matter could be the subject of a review by the Ombudsman under this Part.
(4) Where the Ombudsman is determining a matter brought by an applicant, the public authority or Minister concerned has the onus to show that the information should not be disclosed and it is open to the Ombudsman to determine the outcome of a review on the basis that the onus is not discharged.
(5) Where an external party seeks review of a decision by a public authority or Minister to disclose personal or business information of that external party, the external party has the onus to show that there are grounds that the information should not be disclosed and it is open to the Ombudsman to overturn a decision if that onus is not discharged.
(6) The Ombudsman is to
(a) use the powers in this section to resolve an application for review as soon as practicable after receipt of the application; and
(b) if an application cannot be resolved, ensure that his or her decision on an application for review is made as soon as practicable.
(7) If a public authority fails to comply with a direction of the Ombudsman under subsection (1)(p), the Ombudsman may make a report to the Joint Committee.
(8) A report under subsection (7) may contain such details as the Ombudsman considers relevant.
48. Decisions of Ombudsman
(1) If the Ombudsman intends to make a decision in respect of a review
(a) that is adverse to a public authority or Minister, the Ombudsman must make available a draft of that decision to the public authority or Minister and seek input from that public authority or Minister before finalising the decision; or
(b) in any other case, the Ombudsman may make available that decision to interested parties and seek input from the parties before finalising the decision.
(2) Where a decision has been finalised, the Ombudsman may only reconsider it to correct an accidental mistake or omission.
(3) When a decision in respect of a review has been finalised, the Ombudsman is to provide a written copy of that decision and a statement of the reasons for the decision to each of the parties to the review.
(4) The Ombudsman
(a) must not include in any decision or statement of reasons any information which is exempt information; and
(b) may not confirm or deny the existence of exempt information in any decision or statement of reasons.