Right to Information or RTI refers to the Queensland Government’s information access regime. It’s a scheme that gives the public a right to access government held information. All States in Australia have this type of scheme, but the schemes are often named differently depending on the State. For example, in Victoria it is referred to as Freedom of Information.
How can the public access government held information in Queensland?
Queensland has two pieces of legislation that allow the public access to government-held information:
- the Right to Information Act 2009 (RTI Act); and
- the Information Privacy Act 2009 (IP Act).
However, there are some difference between the Acts:
- Gives a right of access to ALL government information
- Has an application fee
- May have processing charges associated with the application
- Allows an individual to access their own personal information
- Does not have an application fee
- Does not have processing charges
If an individual is seeking access to their own personal information, they can lodge an application under the IP Act. However, if the individual is seeking access to documents that do not contain their personal information, the application must be lodged under the RTI Act. It’s important that applications are lodged under the correct Act to avoid unnecessary charges and time delays.
Who can the public access information from?
The public can only access information from government agencies, including:
- Queensland Government Departments;
- Local government (e.g. Councils);
- Government owned corporations (with some limitations) ; and
- Public authorities (e.g. Universities).
What information can be requested?
The RTI scheme gives the public a right to access documents held by a Queensland Government agency or minister. “Document” is a broad term and can include the following:
- text messages
- skype messages (or other instant messaging application)
- social media posts
- post it notes
- hand written notes
- audio and video recordingsdraft documents.
Can documents of private companies or individuals be released under
Queensland’s RTI scheme?
Yes. If documents of a private company or individual are in the possession of the government agency, then they can be released under the RTI scheme. However, the agency will need to consult with the private company or individual prior to releasing the information to determine whether those parties have any concerns with disclosure of the information. This is called third party consultation.
If the third party does have concerns about disclosure of the information, they can object to its disclosure. They can also appeal any decision made by the agency to release the information and this can delay or stop disclosure of the information.
How long does it take to get information under Queensland’s RTI scheme?
An agency has 25 business days to process an application lodged under the RTI Act or IP Act. However, the Acts give an agency further time to process an application in the following circumstances:
- to consult with a party who may be concerned about disclosure of information
- to issue a notice estimating the fees associated with processing the application, referred to as a charges estimate notice or CEN (only applicable to an application under the RTI Act); and
- if your application requests access to a high volume of information and the agency needs to negotiate the amount of information requested.
An agency can also request an extension of time to enable them to process the application if they are unable to meet the original 25 business day timeframe.
Will all the information be released?
No, a government agency can refuse to release certain types of information. Most commonly, information will be refused because it is:
- exempt; or
- contrary to the public interest to release.
Exemptions are types of information that Parliament decided should never be released. Common exemptions used by agencies include:
What does it do?
|The Cabinet exemption||Prohibits the release of information created for Cabinet or that would reveal a Cabinet consideration.|
|The Local Government budget exemption||Prohibits the release of information created during a local government’s budget process, which occurs each financial year.|
|The Legal Professional Privilege exemption||Prohibits the release of confidential communications between a lawyer and their client.|
|The Parliamentary Privilege exemption||Prohibits the release of information that would infringe parliamentary privilege.|
|The Breach of Confidence exemption||Prohibits the release of confidential information.|
|The Investigation exemption||Prohibits the release of information that would negatively impact an ongoing investigation|
|The Crime and Corruption Commission exemption||Prohibits the release of information obtained, used or prepared by the Crime and Corruption Commission (CCC) or a government agency performing a function on behalf of the CCC.|
|The Prohibition by an Act exemption||Prohibits the release of information under specific pieces of legislation such as the Adoption Act 2009 or the Public Interest Disclosure Act 2010 (the whistle blower legislation)|
An agency may also refuse to release information if it would be contrary to the public interest to do so. To determine this, the agency will apply the public interest balancing test. This requires an agency to consider the public interest factors that apply to information and balance those factors to determine whether the public interest requires disclosure of the information.
The RTI Act contains a list of:
- factors favouring disclosure of information – this is a list of considerations an agency may consider to release information; and
- factors favouring non-disclosure of information – this is a list of considerations an agency may consider to refuse disclosure of information.
An agency will look at these lists and decide what factors favouring disclosure and non-disclosure are raised by the information and then balance them.
If there are more factors that favour disclosure of the information the information will be released.
If there are more factors that favour non-disclosure of the information the information will not be released.
Jane recently had a workplace allegation made against her. Jane lodges an application to the Government Agency for access to a witness statement that was made by a colleague about her during the workplace investigation into her conduct.
The Government Agency considers that disclosure of the witness statement to Jane would:
All parties involved in an RTI application or IP application have a right to appeal an agency’s decision if they disagree with it. The appeal options are as follows:
This is a review conducted by the agency who processed the application. The review must be conducted by:
- a decision maker who is different from the original decision maker; and
- a decision maker who is not less senior than the original decision maker
An agency has 20 business days to finalise the internal review. However, a party may skip this step and go straight to external review if they wish.
This is a review conducted by the Office of the Information Commissioner (OIC). The OIC is an independent body that investigates and reviews decisions of government agencies under the RTI Act and IP Act. There are no fees associated with an external review.
The OIC will review the decision of the agency and may do the following
- attempt to informally resolve the review; or
- agree with the decision made by the agency; or
- vary the decision made by the agency; or
- overturn the decision of the agency and make a new decision.
There are no fixed timeframes for an external review. However, external reviews can be lengthy and take up to a year to finalise.
The Queensland Civil and Administrative Tribunal (QCAT) can review a decision made by the OIC. There are fees associated with this type of review.
The appeal to QCAT may only be on a question of law. This means the relevant party must be arguing that the OIC interpreted or applied the RTI Act or IP Act incorrectly.
There are no fixed timeframes for a QCAT review. However, QCAT reviews can be lengthy and take up to 2 years to finalise.