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Discover how the Right to Information Act 2009 in Queensland is revolutionizing access to government information administratively, with applications as a last resort. Explore the objectives, external review process, publication schemes, application process, fees, and more.
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RTI Act: A new approach Government information will be released administratively as a matter of course, unless there is a good reason not to, with applications under this Act being necessary only as a last resort - Preamble to the Right to Information Act 2009 (Qld)
who’s who in the zoo Top 6 - Applications Top 6 - Pages
the information age is young and old at the same time • Facebook - February 2004 • Flickr - February 2004 • YouTube - February 2005 • Twitter - July 2006 • Tumblr - February 2007 • iphone announced on 9 January 2007 - Released in Australia on 11 July 2008 • Right to Information Act and Information Privacy Act – 1 July 2009 • ipad announced on 27 January 2010 - Released in Australia on May 28 2010 • Pininterest – March 2010 • Instagram – October 2010 • Snapchat – September 2011 • Tinder – September 2012
RTI Act Objective To give a right of access to documents in the government’s possession or under the government’s control Unless, on balance, it is contrary to the public interest to give access
IP Act Objective • To provide for fair collection and handling of personal information in the public sector environment • To provide a right for individuals to access their own personal information, unless on balance it would not be in the public interest, and to have it amended where it is incorrect.
who are we again? • External review • Privacy • Information and Assistance
External review • OIC conducts independent reviews of agency decisions made under the RTI & IP Acts • Onus is on the agency to establish that its decision was justified • OIC can require an agency to: - provide further and better particulars - conduct further searches - produce documents - attend before the Commissioner
Publication Schemes • All agencies must have a scheme on their website • Seven classes of information • Should be updated regularly to ensure information is accurate, current and being accessed
Crime. It’s an ugly word. Here’s one person who found out just how ugly crime can be - the hard way.
applying for access • Prescribed form • Parallel streams – RTI and IP • Cost implications • Application fee RTI - $43.35 – RTI only • Processing charges (over 5 hours) – $6.70 per 15 minutes – RTI only – includes those 5 hours • Photocopying fee – 25 cents per page • Access charges – IP
access charges The access charge under section 77 of the Act in relation to an access application for a document is the total of— (a) the actual cost incurred by the agency or Minister for any of the following— (i) any engagement of another entity to search for and retrieve the document; (ii) any relocation of the document necessary to allow access to be given to the document; (iii) any written transcription of the words recorded or contained in a document mentioned in section 83(1)(d) of the Act; (iv) any creation of a written document mentioned in section 83(1)(e) of the Act; (v) otherwise giving access to the document (except by giving the applicant a black-and-white photocopy of the document in A4 size), for example, by the reproduction of the document; (b) if the applicant is given a black-and-white photocopy of the document in A4 size—$0.25 for each page.
yes, you, laddie (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 client agreement authorising a legal practitioner to act for an applicant
me, myself, I For sections 43(4) and 44(6) of the Act, the evidence of identity prescribed for a person is a document verifying the person’s identity, including, for example— (a) a passport; or (b) a copy of a certificate or extract from a register of births; (c) a driver licence; or (d) a statutory declaration from an individual who has known the person for at least 1 year; or (e) if the person is a prisoner within the meaning of the Corrective Services Act 2006—a copy of the person’s identity card from the department administering that Act that is certified by a corrective services officer within the meaning of that Act. (2) If a document under this section, other than a document mentioned in subsection (1)(e), is a photocopy of an original document, the document must be certified by a qualified witness as being a correct copy of the original document.
RTI rules… RTI Act section 6 and IP Act section 7(1) Relationship with other Acts prohibiting disclosure of information This Act overrides the provisions of other Acts prohibiting the disclosure of information (however described).
but… 3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister— (a) to the extent the document comprises exempt information under section 48; or (b) to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; or (c) to the extent the document is sought under an application by or for a child and comprises the child’s personal information the disclosure of which would not be in the child’s best interests under section 50; or (d) to the extent the document comprises an applicant’s relevant healthcare information the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51; or (e) because the document is non-existent or un-locatable as mentioned in section 52; or (f) because other access to the document is available as mentioned in section 53.
Schedule 3 - exempt information • Cabinet matters • Executive Council information • Incoming briefs for Government • BCC Establishment and Co-ordination Committee • Local Government budget • Sovereign communications • Contempt of Court or Parliament • Breach of confidence • National or State security • Law enforcement or public safety • Investment Incentive Scheme • Specific legislative provisions
close to home 7 Information subject to legal professional privilege Information is exempt information if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.
Schedule 2 – entities to which RTI does not apply • The Governor • The Parliament; and • The Parliamentary Service • Commissions of Inquiry • Parents and Citizens Associations • Grammar Schools • Limited functions of Courts and Tribunals, Government Owned Corporations, State Financial Institutions, Statutory Bodies
public interest balancing test Four parts • Factors irrelevant to deciding the public interest • Factors favouring disclosure in the public interest • Factors favouring non-disclosure in the public interest • Factors favouring nondisclosure in the public interest because of public interest harm in disclosure
curmudgeons of the world unite Disclosure of the information could reasonably be expected to cause embarrassment to the Government or to cause a loss of confidence in the Government. Disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document. Disclosure of the information could reasonably be expected to result in mischievous conduct by the applicant. The person who created the document containing the information was or is of high seniority within the agency.
You say potahto, I say potayto… Part 2 Disclosure of the information could reasonably be expected to contribute to the protection of the environment. Part 3 Disclosure of the information could reasonably be expected to impede the protection of the environment. Part 2 Disclosure of the information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies. Part 3 Disclosure of the information could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.
you decide, gentle reader Part 2 The information is the personal information of an individual who is deceased (the deceased person) and the applicant is an eligible family member of the deceased person. Part 3 The information is the personal information of an individual who is deceased (the deceased person), the applicant is an eligible family member of the deceased person and the disclosure of the information could reasonably be expected to impact on the deceased person’s privacy if the deceased person were alive.
whose information is it really? Part 2 The information is the applicant’s personal information. Part 3 Disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy. Part 4 Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead.
but wait - there’s more Disclosure of the information could reasonably be expected to contribute to the administration of justice for a person. Disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness. Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision. Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.
why are you asking me? – the answer is no (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— (a) to obtain the views of the relevant third party about whether— (i) the document is a document to which this Act does not apply; or (ii) the information is exempt information or contrary to public interest information;
curmudgeons of the world unite … Disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document. Disclosure of the information could reasonably be expected to result in mischievous conduct by the applicant. …
document non-existent and un-locatable 52 Document nonexistent or unlocatable (1) For section 47(3)(e), a document is non-existent or un-locatable if— (a) the agency or Minister dealing with the application for access is satisfied the document does not exist; or (b) the agency or Minister dealing with the application for access is satisfied— (i) the document has been or should be in the agency’s or Minister’s possession; and (ii) all reasonable steps have been taken to find the document but the document can not be found.
document non-existent • Documents that do not exist • Are there reasonable grounds to be satisfied that the requested document does not exist? • Destroyed – flood, fire • Reported lost • Officially disposed of • Never existed • Administrative oversight If the document should exist but it cannot be found: 2. Have all reasonable steps been taken to find the document?
I can’t get me no satisfaction There should be a written record of all searches carried out by the decision maker and/or other officers of the agency. The search record should include (as a minimum): • locations/offices at which the searches were carried out • identification of the person who carried out the searches (by reference to name and position) • time spent searching each location • results of the searches, ie number and description of documents located • where no documents are located, any known reasons why documents could not be located, eg never created, destroyed or sent to another agency • whether any documents that were expected to be found were not found and reasons for this • what steps were taken to locate any documents believed to be missing • whether relevant documents have been disposed of, archived or transferred and if so, when and on what authority • any other locations at which the officer carrying out the search believes the relevant documents could be found • with regard to electronic searches, details of the indexing system used and the parameters of each search (which can be satisfied by attaching print outs from databases or "screen dumps"). (2) Retain a copy of the search record on the access application file.
and then there’s always… Information Privacy Principle 6—Access to documents containing personal information (1) An agency having control of a document containing personal information must give an individual the subject of the personal information access to the document if the individual asks for access. (2) An agency is not required to give an individual access to a document under subsection (1) if— (a) the agency is authorised or required under an access law to refuse to give the access to the individual; or (b) the document is expressly excluded from the operation of an access law.
bound contracted service providers 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 [the privacy obligations] as if it were the agency, in relation to the is charge of its obligations under the arrangement.
which of course, includes… Information Privacy Principle 6—Access to documents containing personal information (1) An agency having control of a document containing personal information must give an individual the subject of the personal information access to the document if the individual asks for access. Information Privacy Principle 7—Amendment of documents containing personal information • An agency having control of a document containing personal information must take all reasonable steps, including by the making of an appropriate amendment, to ensure the personal information— (a) is accurate; and (b) having regard to the purpose for which it was collected or is to be used and to any purpose directly related to fulfilling the purpose, is relevant, complete, up to date and not misleading.
Complaints An individual whose personal information is, or at any time has been, held by a relevant entity may make a privacy complaint… A privacy complaint is a complaint by an individual about an act or practice of a relevant entity in relation to the individual’s personal information that is a breach of the relevant entity’s obligation under this Act to comply with the privacy principles.
Complaints Must: • be made by an individual about the individual’s personal information • first complain to the ‘appropriate person under the relevant entity’s complaints management system’ • give the relevant entity 45 business days to respond to the complaint • and only after all this, can the complainant…
Complaints Make a formal complaint to the OIC, who: • may decline to accept it • may decide to no longer deal with it • refer the complaint elsewhere Once accepted, the OIC must: • take all reasonable steps to effect a settlement in the case UNLESS…
Complaints …the complainant asks the OIC to refer the complaint to the Queensland Civil and Administrative Tribunal; who will hear the hear the matter and make binding orders
QCAT orders • The relevant entity must not continue or repeat an act or practice • The relevant entity must take reasonable steps to compensate for loss or damage • The relevant entity must apologise • The relevant entity must amend documents • The relevant entity must pay the complainant up to $100,000 to compensate the complainant for loss or damage including for injury to feelings or humiliation $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
Support Guidelines and Information Sheets available on the OIC website – www.oic.qld.gov.au Enquiries Service: 3234 7373 (8:30am-4:30 pm) enquiries@oic.qld.gov.au
