Australia: Queensland Government seeking input on Right to Information Act and Information Privacy Act

The Queensland Government is currently undertaking a review of the Right to Information Act 2009 (Qld) (RTI Act) and Information Privacy Act 2009 (Qld) (Information Privacy Act).

The Government recently published a consultation paper (Consultation Paper) which looks at issues raised in 2013 and new issues in 2016, including several that will be particularly relevant to contracted service providers (CSPs) delivering services on behalf of Queensland Government agencies.

What do CSPs need to know?

  • The Queensland Government is conducting a review of the RTI Act and Information Privacy Act. The review started in 2013 under the previous Government.
  • The 2016 Consultation Paper asks 34 questions about a range of issues and foreshadows possible changes in the RTI Act and Information Privacy Act.
  • Consultation questions of main interest to CSPs would include: Whether the RTI Act and Chapter 3 of the Information Privacy Act should be extended to cover documents of CSPs where they are performing functions on behalf of Government? And whether the privacy obligations under the Information Privacy Act should be extended to sub-contractors?
  • Public comment on the Consultation Paper is due by 3 February 2017.

What are the RTI Act and Information Privacy Act about?

In general, the RTI Act gives a right to apply for access to documents held by government agencies and Ministers. It also requires government agencies to proactively make information available through publication schemes (which require certain agency documents to be placed on websites) and disclosure logs (which require documents released as a result of RTI applications to be published online).

The Information Privacy Act provides two sets of privacy principles (called "IPPs" and "NPPs") which regulate the way public sector agencies collect, store, use and disclose personal information about individuals. Chapter 3 of the Information Privacy Act also provides an individual with rights to access documents of an agency or Minister to the extent they contain personal information about that individual, and to correct personal information held by those agencies.

Why is this consultation happening?

The Consultation Paper is part of a mandatory review of the RTI Act and Information Privacy Act.

When the review process started in 2013, the previous Government published two Discussion Papers and received 67 submissions. Some of the issues raised and submissions received have been incorporated into the new Consultation Paper, together with new issues for public consultation.

The objects of the 2013 and 2016 reviews include:

  • whether the primary object of each Act remains valid;
  • whether the Acts are meeting their primary object;
  • whether the provisions of the Acts are appropriate for meeting their primary object; and
  • to investigate specific issues recommended by the Minister or the information commissioner.

What issues are considered in the Consultation Paper?

Among the 34 questions in the Consultation Paper, two are directly relevant to "contracted service providers" (CSPs) who provide outsourced services on behalf of Government:

Q4. Should the RTI Act and Chapter 3 of the Information Privacy Act apply to the documents of CSPs where they are performing functions on behalf of Government?
Q6. Does the Information Privacy Act deal adequately with obligations for CSPs? Should the privacy obligations in the Information Privacy Act be extended to sub-contractors?

We further discuss these issues below.

Q4. Should the RTI Act and Chapter 3 of the Information Privacy Act apply to the documents of CSPs where they are performing functions on behalf of Government?

The 2013 Discussion Paper acknowledged the continuing trend of outsourcing service delivery to CSPs and the possible consequence of a lowering or loss of public accountability because the RTI Act and Chapter 3 of the Information Privacy Act provide no statutory right of access to documents held by CSPs. But submissions to the 2013 review acknowledged that the administrative burden and costs to CSPs if they were treated as "agencies" under the RTI Act (including processing RTI applications, and complying with the publication scheme and disclosure log requirements).

The Consultation Paper now seeks public comment on whether the approach in section 6C of the Commonwealth Freedom of Information Act 1982 Cth (FOI Act) should be adopted in Queensland. Under section 6C, when an FOI application is made to an agency for documents held by its CSP, the CSP must provide the documents to the relevant agency which remains responsible for processing the FOI application. The Consultation Paper suggests adopting this approach would enable right-to-information access without "unduly" burdening the CSP.

We have had cause to review service agreements which contractually require the CSP to provide documents (except where the documents are exempted) and assistance to agencies to respond to RTI requests. In this context, we anticipate "unduly" merely means, no higher burden than the CSP may have under its contract with the agency.

CSPs should consider whether this change (if incorporated into the RTI Act) would place an unreasonable burden on them; and if not already, ensure the CSP has put processes and procedures into place for responding to an agency's requests for relevant documents of the CSP which contain personal information.

Q6. Does the Information Privacy Act deal adequately with obligations for CSPs? Should privacy obligations in the Information Privacy Act be extended to sub-contractors?

This issue was not raised in the 2013 Discussion Paper.

Unlike the RTI Act, the privacy obligations under the Information Privacy Act can extend to CSPs. Section 35 of the Information Privacy Act requires agencies to take all reasonable steps to ensure that a contracted service provider is required to comply with the NPPs, IPPs, or "transfer of information" provisions, as applicable. If the agency does not take steps to find a contracted service provider and there is a breach of a privacy principle, the agency itself is liable for the breach.

In our experience, agencies typically include provision in their service agreements which require CSPs to comply with the agency's privacy obligations. See for example, clause 18 in the Queensland Government Service Agreement - Standard Terms for Social Services. Clause 22.2(d) further requires CSP to ensure that any subcontractor complies with the Service Agreement as if the subcontractor were a party to it.

So despite the Information Privacy Act does not automatically bind CSPs and subcontractors to the privacy provisions in that legislation, in practice this is addressed by contract—and arguably the questions posed in Q6 are a non-issue. But in terms of legal risk, unless the Information Privacy Act is changed, the agency remains liable to the extent its CSP is not contractually required (by a clause such as clause 22.2(d)) to ensure its subcontractor complies with those privacy obligations, or where the CSP fails to ensure the subcontractor complies with the agency's privacy obligations.

CSPs should review whether their service contracts with Queensland Government agencies require them to comply with the agency's privacy obligations (some older contracts might not have been amended to include this requirement), and to the extent the services are subcontracted, whether the CSP's subcontracts include clauses which also require the subcontractor to comply with the privacy obligations.

Other issues

Other questions and issues covered by the Consultation Paper include:

  • Should the way the RTI Act and Chapter 3 of the Information Privacy Act applies to statutory bodies and government owned corporations (GOCs) with commercial interests be changed? Should some GOCs be treated differently?
  • Whether the categories of exempt information should be increased or decreased?
  • Whether the public interest test should simplified or changed, and if yes how?
  • Should the Departmental Disclosure Log requirements be extended to other agencies and Ministers?

How can a CSP make a public submission?

The RTI Act and Information Privacy Act are important to public information management, accountability and transparency, and therefore any potential changes to Government policy or these Acts should be carefully considered and a wide range of views taken into consideration.

The Department of Justice & Attorney-General's website describes the requirements and process for making submissions to the public consultation process.

If your organisation is a CSP or if you have another interest in providing input to this review, we can assist you in preparing your submission.

Submissions are due by 3 February 2017.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Steven Hunwicks
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions