Upcoming Mallesons seminarsGovernment departments, local governments, public authorities, GOCs (including subsidiaries) and any corporation or individual that supplies information to the above bodies.
What do you need to do?Agencies should update compliance manuals and processes. Corporations should become familiar with application processes and the third party consultation provisions.
Justin McDonnell
Partner
Priscilla Lal
Senior Associate
Melissa Graham
Solicitor
Justin McDonnell
Partner
T +61 7 3244 8099
On 2 June 2009, the Queensland Parliament passed the Right to Information Act 2009 (Qld) (the RTI Act) and Information Privacy Act 2009 (Qld) (the IP Act). These Acts create significant changes to the Freedom of Information (FOI) regime in Queensland. People will now have access to the documents of agencies and ministers, unless on balance, release of the material can be shown to be contrary to the public interest.
What do the Acts do?
The RTI Act repeals the Freedom of Information Act 1992 (Qld) (the FOI Act). The RTI Act creates a new regime which is pro-disclosure.
Now access applicants will have a presumed right to access documents of an agency or Minister, unless:
- a document contains ‘exempt information’, or
- the release of the document would on balance, be contrary to the public interest.
‘Exempt information’ includes cabinet information, information briefings for incoming ministers and information which would be subject to legal professional privilege or found an action for breach of confidence. Even in the case of exempt material, the agency or Minister still has an overriding discretion to give access to the material.
The IP Act deals with the use of personal information and codifies government policy on the release of personal information.
Who does this affect?
All ‘agencies’ will be impacted by the RTI Act. An agency is a government department, local government, public authority, government-owned corporation (GOC) or subsidiary of a GOC. Certain entities are exempt from the RTI Act.
Any corporation or individual who has liaised with or provided information to any of the above bodies could be named in documents or submitted documents, such as reports, which may be released and, therefore, will be impacted by the regime.
When will the Acts commence?
The Acts are to commence on a day to be fixed by proclamation. It is expected the RTI Act will commence 1 July 2009. All FOI Applications made under the FOI Act that have not been finalised before commencement of the RTI Act will continue to be covered by the FOI Act.
Commercially sensitive documents
The most significant aspect of the RTI Act is that it removes section 11A of the FOI Act. Previously, the FOI Act did not apply to documents received or brought into existence by a GOC carrying out its activities mentioned in Schedule 2 of the Act, including commercial activities. GOCs have traditionally relied on this section to resist release of commercially sensitive material. Now GOCs will need to satisfy the public interest test, by showing that on balance, the release of that information is contrary to the public interest.
The public interest test involves weighing up a number of factors including the ‘harm factors’. ‘Harm factors’ include information which would affect relations with other governments, the operations of agencies, disclose deliberative processes, disclose personal information, affect confidential information or disclose trade secrets, business affairs or research. A GOC will bear the onus of showing that it is prejudiced by access being granted to the document.
The ‘harm factors’ are significant. Previously some of the ‘harm factors’ were exemptions under the FOI Act. Now, these factors are just one factor to be considered in determining whether a document should be disclosed or not.
Timing issues
The processing period for applications is 25 business days from the date that the application is received by the agency or Minister. Applications of internal review must be lodged within 20 business days of a decision being made. An agency or Minister will have 20 business days to consider the internal review application. Applications for external review must be lodged within 20 business days.
Consultation with third parties
The RTI Act contains consultation provisions which are similar to the provisions in the FOI Act. If there is a disagreement with a third party about whether information should be released, access must be deferred until:
- the third party says it does not want to apply for review
- if no notice is given and no application is made, then by the end of the review period, or
- if an application is made by the end of the view period, the review has ended.
The agency or Minister must give the applicant written notice when access is no longer deferred.
What do you need to do?
If you are an ‘agency’, you should assess your compliance manuals and processes to ensure that you strictly comply with the RTI Act.
If you are a third party, you should be notified by the agency or Minister before information relating to you is released. You will need to consider whether the release of the material is offensive or commercially sensitive and whether you want to resist it.
If you are making an application, you need ensure that you follow the procedures outlined in the RTI Act so that you satisfy the requirements for making an application and properly exercise your rights of internal and/or external review.
The important thing to note is that any document (including commercially sensitive contracts) held by any agency or Minister could potentially be revealed to other parties at a later date. You should be mindful of this when creating documents in the first place.