21 May 2009

Progressing FOI Reform in Queensland

by Barry Dunphy, Eleanor Dickens

The Right to Information Bill and the Information Privacy Bill

The reform of Queensland's Freedom of Information regime has further progressed with the introduction of the Right to Information Bill (RTI Bill) and the Information Privacy Bill (IP Bill) into the Queensland Parliament on 19 May 2009.

The introduction of the Bills represents the final stages of Queensland's FOI reform process which commenced in September 2007 with the appointment of an independent FOI review panel chaired by Dr David Solomon.

Prior to the introduction of the Bills, the FOI reform process saw the Government release draft RTI and IP Bills on 4 December 2008 for public consultation. In finalising the RTI Bill and IP Bill, the Government has now considered submissions from a wide range of stakeholders.

While the RTI Bill and IP Bill as introduced into Parliament are similar to the earlier draft Bills there are some key differences including:

  • Both the RTI and IP legislation now includes express directions to RTI/IP decision-makers that the legislation is to be administered with a "pro-disclosure" bias and the grounds under which access can be refused are to be interpreted narrowly.
  • Third party consultation rights have been broadened to now include a right to make submissions about whether particular information is exempt on the basis of the public interest test. These rights are in addition to the right to make submissions regarding the exempt information prescribed under the RTI and IP legislation.
  • While the public interest test and the factors to be considered in applying the public interest test are largely unchanged, the RTI legislation now provides greater direction to decision-makers as how to apply the public interest test.
  • One year after the commencement of the IP Bill, local governments will be required to comply with the Information Privacy Principles as prescribed under the IP legislation.
  • The concept of a "mixed access application" (seeking access to both personal and non-personal information) has been abolished and replaced with a consultation mechanism designed to ensure that applicants make appropriate access applications under either the RTI legislation or the IP legislation. However, it is still possible for an application seeking access to personal and non-personal information to be processed under the RTI Bill.
  • The RTI legislation clearly now applies to subsidiaries of Government Owned Corporations (GOCs). The draft RTI Bill indicated that the Government's position was to capture GOC subsidiaries under the RTI framework and this position has now been expressly confirmed in the RTI legislation.
  • Documents received or created by the GOCs which were excluded under section 11A of the Freedom of Information Act 1992 (FOI Act) will now not be subject to access under the RTI legislation.
  • Prescribed entities including several GOCs will not be subject to the RTI legislation in relation to prescribed functions. For some GOCs such as the electricity generators, this will provide almost a blanket exemption except in relation to their community service obligations. The Government's policy position appears to have remained unchanged in accepting that the competitive commercial activities of GOCs should not be subject to the RTI legislation.
  • GOCs and GOC subsidiaries are expressly declared to be entities to which the Information Privacy Principles do not apply.
  • In addition to the requirement to publish a publication scheme, agencies will be required to make copies of their policy documents publicly available. A failure to comply with this requirement may mean that an agency is prevented from applying a particular policy in certain circumstances. This requirement was included in section 19 of the FOI Act but was not included in the draft RTI Bill.
  • The responsible Minister will be required to commence a review of both the RTI and IP legislation withintwo years of commencement of the legislation. The Minister is required to table a report covering the outcomes of the review in Parliament.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.