The Right to Information Bill and the Information Privacy
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
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
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
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
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 within two years of commencement
of the legislation. The Minister is required to table a report
covering the outcomes of the review in Parliament.
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.
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