Queensland Departmental and Ministerial disclosure logs will need to be expanded to set out a larger volume of documents and information.
The Queensland Government has moved to require Queensland Government agencies and Ministers to publically disclose further information and documents in connection with access applications that are made under Queensland's Freedom of Information legislation, the Right to Information Act 2009 (Qld) (RTI Act).
In practical terms, these changes will mean that Departmental and Ministerial disclosure logs will need to be expanded to set out a larger volume of documents and information. This is particularly relevant as some RTI Act access applications can require the release of a high number of documents.
It will also mean that Departments and Ministerial Offices will need to have streamlined processes in place to effectively coordinate the release of documents to an applicant and the subsequent uploading and release of those same documents and accompanying information on the relevant disclosure logs as soon as practicable.
What brought these changes about?
Disclosure logs are hosted on agency and Ministerial websites; they allow the public to access documents and information that have been released under RTI access applications.
The Right to Information and Integrity (Openness and Transparency) Amendment Act 2012 (Qld) was passed on 29 November 2012, with the substantive provisions of the Act set to commence on a date set by proclamation. Under it, agencies and Ministers must now collect certain information from persons making access applications and must publish a range of information and documents on their disclosure logs.
The changes that will be implemented by the Act will apply differently across the range of public sector entities that are subject to the RTI Act. Specifically, the new requirements will have the biggest impact on Departments and Ministers.
Additional information now to be provided by access applicants
The information that access applicants must provide when making an application is prescribed under section 24 of the RTI Act. These requirements apply to all public sector entities that are subject to the RTI Act and to Ministers.
The new Act now expands on the information that is to be included in an access application by an applicant to include a statement whether access is being sought "for the benefit of, or use of the document, by the applicant or another entity". Where access is sought for the benefit or use of another entity, the access applicant is required to name that other entity.
This requirement, in conjunction with the new disclosure log requirements which are applicable to Departments and Ministers (as discussed below), will mean that certain information included in an access application will now be published on disclosure logs.
New disclosure log requirements for Departments and Ministers
The new disclosure log requirements are specifically applicable to Departments and Ministers and are prescribed in a new section 78 that is to be inserted into the RTI Act. The requirements have a twofold effect.
Firstly, as soon as practicable after a valid application has been made to a Department or a Minister, details of the information sought under the application and the date it was made must be placed on the Department's or the Minister's disclosure log.
Secondly, Departments and Ministers are now required to publish certain information and documents on their disclosure logs. This is a departure from the current legislative framework which, subject to certain limitations, provides Departments and Ministers with a degree of discretion as to what information and documents will be released on a disclosure log.
These requirements, in summary form, require that:
- Where access is granted and the applicant has accessed the relevant documents within the required time, the Department or Minister must release on their disclosure log as soon as practicable: a copy of the document released; the applicant's name; and the name of the other entity (where access to the document was sought for the benefit or use of that entity); and
- Where access is granted and the applicant has failed to accessed the relevant documents within the required time, the Department or Minister must release on their disclosure log as soon as practicable: details identifying the document; information about the way in which the document can be accessed; and charges to be paid for accessing the document. Once a person has accessed the documents and paid any applicable charges, the document must be released on the disclosure log with no further charges being payable to access the document.
Disclosure logs requirements for agencies other than Departments
For agencies other than Departments that are subject to the RTI Act, the changes to be implemented by the Act are not substantive.
These agencies will continue to maintain the same degree of discretion in terms of determining whether to release information and documents on a disclosure log and these agencies will not be required to release the name of an applicant or the other entity (where relevant) as must now be done by Departments and Minsters.
Generic disclosure log requirements
In addition to the Departmental and Ministerial specific disclosure log requirements, a new section 78B will be inserted into the RTI Act which sets out requirements that are applicable to all agencies (excluding entities which are declared to be subject to the RTI Act under section 16 of the RTI Act).
The new section 78B incorporates existing requirements such as the requirement that agencies must comply with guidelines published by the Minister, but also includes a new provision dealing with specific categories of information which must be deleted from a document before its release on a disclosure log. These include defamatory information, and information which would unreasonably invade the privacy of a person or would cause substantial harm to an entity.
Watch this space
There may be further amendments contemplated to the RTI Act in 2013.
Section 183 of the RTI Act requires that a review of the RTI Act to have commenced within two years of commencement of the RTI Act. On completion of the review, a report tabling the outcomes of the review is required to be tabled in Parliament.
It is understood that the release of the results of this review process will be released in early 2013.
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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 bulletin. Persons listed may not be admitted in all states and territories.