Application of section 12 RTI Act
1. Is the document a 'document of an agency'?
'Document' is not defined in the RTI Act. Schedule 1 of the Acts Interpretation Act 1954 (Qld) defines the word 'document' to include:
- any paper or other material on which there is writing
- any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
- any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).
'Agency' is defined in section 14 of the RTI Act as a 'department, local government, public authority, government owned corporation or a subsidiary of a government owned corporation'.
See 'Section 14 RTI Act' Annotation.
c) Is the document 'in the possession or under the control of an agency'?1
A document will be a 'document of an agency' if the document is 'in the possession or under the control' of an agency.2 The term 'possession' as used in section 12 merely requires the relevant document to be the in physical possession of an agency. Formal legal possession is not required; nor is it necessary to consider the means by which the document came into the agency's possession.3 Qualifications to the concept of 'possession' cannot be properly reconciled with the express language of section 12 of the RTI Act.4 The Information Commissioner has previously found5 that the test under section 12 of the Act is not, relevantly, whether a document ever has been in the possession of an agency, but whether it is presently.
In terms of 'control', while an agency may be obliged to return a document to its legal owner in particular circumstances, agencies must assess claims of legal ownership with rigour, rather than permit mere assertions of ownership or superior propriety entitlement to defeat the statutory right of access conferred by section 23 of the RTI Act.6 In any event, a right of access would continue to apply to copies or duplicates of a document that may have been made by an agency.7
d) Is the document 'in the possession or under the control of an officer of the agency in the officer's official capacity'?
A 'document of an agency' includes a document 'in the possession, or under the control, of an officer of an agency in the officer's official capacity'.8
The phrase 'an officer of the agency in the officer's official capacity' distinguishes between documents created or received by an officer in a private or personal capacity from those created or received for and on behalf of the officer's employing agency; ie documents created or received by an officer on behalf of the agency, in the course of the officer's duties.9
e) Is the document one which the agency is entitled to access?
A 'document of an agency' also includes a document 'to which the agency is entitled to access'.10
2. Is the document excluded from being a 'document of an agency'?
A document will not be a document of an agency if it is a 'document of a Minister'11 or a 'document to which [the RTI Act] does not apply'.12
See 'Section 11 RTI Act' Annotation.
See 'Section 13 RTI Act' Annotation.
- 1 Section 12 of the Right to Information Act 2009 (Qld) (RTI Act).
- 2 Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third party) (Unreported, Queensland Information Commissioner, 19 December 2011) at paragraph 14 (Kalinga) which refers to Holt and Reeves at paragraph 22.
- 3 Kalinga at paragraph 19.
- 4 Kalinga at paragraph 18.
- 5 Queensland Newspapers Pty Ltd and Ipswich City Council  QICmr 30 (26 November 2015) at paragraph 32 (Queensland Newspapers).
- 6 Kalinga at paragraph 21 which refers to Holt and Reeves at paragraph 25.
- 7 Kalinga at paragraph 21.
- 8 Section 12(b) of the RTI Act.
- 9 (Unpublished OIC Preliminary View).
- 10 Section 12(a) of the RTI Act.
- 11 Section 13 of the RTI Act.
- 12 Section 12 of the RTI Act.
Last updated: May 10, 2017