Overview of Section 9 FOI Act
A body a 'public authority' for the purpose of the FOI Act if it is:
- established by an enactment, for a public purpose1
- established by government under an enactment for a public purpose, even if the public purpose is not stated in the Act2
- created by the Governor in Council or a Minister3
- directly or indirectly supported by government funds or other assistance, or the government is in a position to exercise control over body and declared by regulation to be a public authority for the purposes of the FOI Act;4 or
- established by or under an enactment and declared by regulation to be a public authority for the purposes of the FOI Act.5
A person a 'public authority' for the purpose of the FOI Act if the person:
- holds an office established by or under an enactment;6 or
- holds an appointment made by the Governor in Council or Minister otherwise than under by an enactment and the appointment is declared by regulation to create a public authority for the purposes of the FOI Act.7
However, a person is not a 'public authority' merely because they hold:8
- an office, the duties of which are performed as duties of employment as an agency's officer; an office of member of a body; or
- an office established by or under an enactment for the purposes of an agency.
Section 9 of the FOI Act was amended by the Freedom of Information and Other Legislation Amendment Act 2005 (Qld). Relevantly, section 9(1)(ii) was amended to include the words, 'whether or not the public purpose is stated in the enactment', to expressly reflect the Information Commissioner's decisions in Barker 9and Price 10that the provision does not require the public purpose to be specified in the relevant enactment.
Another notable amendment was the removal of a previous section 9(2) of the FOI Act which specified that a body established by or under an enactment for the purpose of assisting, or performing functions connected with a public authority, is not a separate public authority, but falls under the public authority.11
Other relevant FOI Act sections
Section 8 FOI Act
Section 8 of the FOI Act defines 'agency' to include a 'public authority'.
Section 21 FOI Act
Subject to the FOI Act, a person has a legally enforceable right to be given access to documents of agency and official documents of a minister.
1Section 9(1)(a)(i) of the FOI Act.
2Section 9(1)(a)(ii) of the FOI Act.
3Section 9(1)(b) of the FOI Act.
4Sections 9(1)(c)(i)(A) and 9(1)(c)(ii) of the FOI Act.
5Sections 9(1)(c)(i)(B) and 9(1)(c)(ii) of the FOI Act.
6Section 9(1)(d) of the FOI Act.
7Section 9(1)(e) of the FOI Act.
8Section 9(2) of the FOI Act.
9Barker and World Firefighters Games, Brisbane, 2002 (2001) 6 QAR 149.
10Price and The Local Government Association of Queensland Inc (2000) 5 QAR 417 at paragraph 19.
11Freedom of Information and Other Legislation Amendment Act 2005 (Qld).
Last updated: March 1, 2012