22 Dec 2016

Queensland Government seeks more views on the Right to Information Act and the Information Privacy Act

By Eleanor Dickens

It is essential that agencies participate in the review by identifying and making submissions.

On 13 December 2016 the Queensland Government announced that it would undertake further public consultation on the review of the Right to Information Act 2009 (the RTI Act)  and the Information Privacy Act 2009 (the IP Act) that commenced in August 2013 and released a discussion paper inviting further submissions. 

The Acts were a substantial and significant reform in the way that Queensland public sector information could be accessed, used, disclosed and managed. This review is therefore an opportunity to ensure that the scope, application and operation of these frameworks remain consistent with the Government's policy objectives, and that these Acts establish a modern, effective and efficient information management framework underpinned by transparency and accountability policy drivers.

The outcomes may be useful for any other jurisdictions that may then consider potential changes and amendments to their FOI and information privacy arrangements.  This is particularly relevant as Queensland was the first Australian jurisdiction to substantially reform and amend its FOI legislative model.  Various aspects of these reforms were then adopted in other jurisdictions including the Commonwealth, New South Wales and Tasmania.

The 2013 review revisited in 2016

The review of the RTI and IP Acts is mandated by the Acts with the review initially commencing in August 2013 under the previous Government.  Sixty-seven submissions were received in response to the 2013 review; they will be further considered, and have already informed several issues and matters raised in the 2016 Discussion Paper. 

The 2016 consultation process is to provide an opportunity to further consider specific issues raised in the 2013 review on which a range of varied responses were received as well as to raise additional issues and to ensure that the review process considers recent developments including changes in technology. 

Key issues from the 2013 review of the RTI and IP Acts

Many of the key issues identified in the 2013 review have again been raised in the 2016 consultation process, including:  

  • Are the objects of the RTI and IP Acts being met? 
  • How should the RTI Act and IP Act apply to government owned corporations?
  • Should the RTI Act and Chapter 3 of the IP Act apply to contracted service providers where they are performing functions on behalf of Government? 
  • Should the threshold for third party consultations be amended so that the trigger is that the disclosure in question will be of a "substantial concern" to the relevant third party?
  • Are the categories of exempt information satisfactory and appropriate?
  • Should the public interest test be simplified and/or amended and, if so, how?

Additional issues identified in the 2016 consultation process

The additional issues that have now been raised for further consultation include:

  • Are there benefits in the Departmental Disclosure Log requirements which require Departments to include information regarding the identity of the applicant and whether they have sought information on behalf of another entity or person?
  • Should the Departmental Disclosure Log requirements be extended to other agencies and Ministers?
  • Should the way the RTI Act and Chapter 3 of the IP Act applies to statutory bodies with commercial interests be changed?  This issue has only generally be considered in the context of Government Owned Corporations (established under the Government Owned Corporations Act 1993 Qld (GOC Act)) and other State owned corporate vehicles incorporated under the Corporations Act with commercial functions. 
  • Is there justification for treating some of the government owned corporations differently?

Varied and different responses from the 2013 review

The 2016 review also identifies particular issues where there was significant variance across the submissions received under the 2013 review. 

The identification of these issues is significant in that should there be any amendment to the Acts in response to these issues, these amendments are likely to be contentious. 

The treatment of government owned corporations and contracted service providers under the RTI Act

The RTI and IP Acts currently apply inconsistently to government owned corporations (GOCs). Those  established under the GOC Act are either partially or fully subject to the RTI Act and Chapter 3 of the IP Act and those that are not are fully exempt. 

The 2013 review submissions were mixed between support for the extension of the Acts to GOCs and suggesting that it would be an additional burden on the operations of GOCs to subject them to the full requirements of the RTI Act and could affect their ability to generate commercial returns.  

There is currently no right to access documents held by contracted service providers under the RTI Act.  The 2013 review submissions were concerned with potential administrative burden and cost in this respect. The 2016 discussion paper identifies the approach set out in section 6C of the Privacy Act as an alternative means of accessing the documents of contacted service providers.  Under this approach, applications for documents would be made to agencies with an agency's contracted services provider/s required to provide relevant information if so required by the agency.

Whether the categories of exempt information should be increased or decreased

The submissions to the 2013 review indicated strong support to simplify the public interest balancing test.  However, there was no preferred solution identified for how the test could be simplified.

The 2016 Discussion Paper identifies several ways of simplifying the test including:

  • consolidating the factors in parts 3 and 4 of Schedule 4 of the RTI Act into a single list of factors favouring non-disclosure to be compared against the factors favouring disclosure; and
  • amending individual factors to ensure consistency in language used to prescribe threshold tests contained across the public interest factors and to ensure factors contain only threshold requirement to be satisfied as opposed to two separate threshold requirements as is currently the case for some of the factors favouring non-disclosure.

Making a submission

Given the status of the RTI and IP Acts as central elements of Queensland's public sector information management regime as well as key accountability and transparency mechanisms, any potential amendment to these Acts requires significant consideration and consultation.

In these circumstances and considering that this review represents the first real opportunity to review and revisit these Acts, it is essential that agencies participate in the review by identifying and making submissions in respect of issues that are encountered in the operation and administration of these Acts.

The deadline for submissions is Friday 3 February 2017.  

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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.