Key decisions applying section 12 RTI Act

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)

The applicant sought access to documents relating to the appointment of a Departmental officer to the board of City North Infrastructure Pty Ltd (CNI). The Department of Employment, Economic Development and Innovation (Department) withheld access to 10 pages on the basis that the documents were not 'documents of an agency' within the meaning of section 12 of the RTI Act, and therefore not subject to the Act.

On external review, the Department accepted the OIC's view that the documents were subject to the RTI Act and was prepared to disclose the documents to the applicant. However, CNI objected to disclosing the relevant information on the basis, among other things, that the documents were not 'documents of an agency' and therefore not subject to the RTI Act. If the documents were subject to the RTI Act, CNI submitted that access should be refused because the documents comprised exempt information as disclosure would found an action for breach of confidence and/or the documents comprised information the disclosure of which would, on balance, be contrary to the public interest.

Is the document in the possession or under the control of an agency?

Under section 12 of the RTI Act, for a document to be 'a document of an agency', it must be 'in the possession or under the control of an agency'.

The Information Commissioner was satisfied that the term 'possession' in section 12 of the RTI Act simply requires that the relevant documents be the in physical possession of an agency. [14] The Information Commissioner adopted the meaning of 'possession' in Holt and Reeves and Education Queensland and Anor:¹

…I consider that an interpretation which excludes, from the ambit of the word 'possession', documents of which an agency merely has custody, or physical possession without legal possession, is too difficult to reconcile with the presence in the relevant definition of the words 'whether…received in the agency'…In my view, mere physical possession of documents by an agency is sufficient to make them 'documents of an agency' for the purposes of the FOI Act.² [My emphasis]

CNI submitted that, in determining the meaning of the term 'possession', the test of physical possession should not be an absolute one and the relevant test is physical possession to which an agency is entitled. [16] Further, CNI asserted that the capacity in which the Department came into possession of the document must be taken into account and weight must be given to the circumstances in which the agency obtained possession of the document and whether the agency has a present legal entitlement to possess the document.³

The Information Commissioner was satisfied that qualifications to the concept of 'possession' cannot properly be reconciled with the plain language of section 12 of the RTI Act.⁴ The term 'possession' does not require formal legal possession and nor is it concerned with the means by which the documents came into an agency's possession.⁵

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

As the documents were in the physical possession of the Department, the Information Commissioner was satisfied the documents were 'documents of an agency' and subject to the RTI Act.

Queensland Newspapers Pty Ltd and Ipswich City Council [2015] QICmr 30 (26 November 2015)

The applicant sought access to documents concerning travel arrangements for a trip to the United States in September 2010 involving Ipswich City Properties Pty Ltd (ICP) or its agents (First Application). The applicant lodged a second application seeking access to travel itineraries and any other documentation relating to travel taken by directors of Ipswich City Properties to Europe and the Middle East in 2012 (Second Application).

Ipswich City Council (Council) located no information in response to the First Application.  Council located a small amount of information in response to the Second Application and, in its decision, suggested that ICP might hold further relevant documents, but that any such documents would not be documents of Council, and therefore not ‘documents of an agency’ subject to the RTI Act.

The issue for determination on external review was whether any documents responsive to the application held by ICP, a Council-owned company, could be regarded as ‘documents of an agency’ within the meaning of section 12 of the RTI Act.

Is the document in the possession or under the control of an agency?

Council provided submissions that Council and ICP operate ‘separately’ and ‘independently of each other’.⁸ In summary, Council explained that:⁹

• ICP is a separate legal entity and operates separately and independently of Council; and
• ICP has its own separate licensed premises within Council building premises and information management and storage systems.

The Information Commissioner was satisfied that while it was likely that the officials nominated by the applicant in his submissions¹⁰ were in possession of documents of the kind specified during their travels, there was no evidence that any documents of the kind requested were presently¹¹ in Council’s possession.

In determining whether the document was under the control of Council, the Information Commissioner looked at whether Council had a present legal entitlement to take physical possession of the document.¹² The Information Commissioner was not satisfied that Council held a present entitlement to take physical possession of documents held by ICP.  It was established that while Council, as sole shareholder, essentially owned ICP, as an incorporated body, ICP had a separate legal entity distinct from Council¹³ and any property, including documents and records it created, belonged to ICP.

In these circumstances, the Information Commissioner was satisfied that any relevant documents that may be held by ICP were not in the possession or under the control of Council and, therefore, were not ‘documents of an agency’ for the purposes of the RTI Act.

Maurice Blackburn Lawyers and Department of Transport and Main Roads; City North Infrastructure Pty Ltd (Third Party) [2014] QICmr 6 (25 February 2014)

The applicant sought access to documents referred to in a deed for the construction of the Airport Link and Northern Busway.

The Department of Transport and Main Roads (Department) refused access to the requested documents on the ground that it had taken all reasonable steps to locate the documents and it was satisfied the relevant documents did not exist. The Department’s decision noted that the documents may be in the possession of City North Infrastructure (CNI) but that such documents did not comprise documents of the Department.

The issue for determination on external review was whether the Department was entitled to refuse access to the requested documents on the basis that they were nonexistent.

The documents sought by the applicant were identified in the Airport Link and Northern Busway Project Deed and, according to this Deed, were required to be created by or produced to the State. The State established an entity, CNI, to manage the project on the State’s behalf. CNI was a State Government-owned company funded by the State of Queensland.

By a notice of appointment, the CEO of CNI was appointed as the State’s representative. The Information Commissioner was satisfied that the CEO of CNI was, as a consequence of this appointment, an agent of the State for the purposes of the Deed. It followed then that the State (as principal) was legally entitled to possession of documents created by CNI’s CEO (its agent), and by extension, documents received by that officer, in fulfilment of their responsibilities as the State’s representative under the Deed.

The Information Commissioner was satisfied that the documents responsive to the application would have been created or received by persons acting in the capacity of CEO of CNI in the carrying out of their duties as the State’s representative under the Deed, that the title in those documents belonged to the Department and the Department held a present legal entitlement to possession.  Accordingly, the documents were therefore, documents of an agency under section 12 of the RTI Act.

Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd (Third Party); Treasury Department (Fourth Party) (Unreported, Queensland Information Commissioner, 9 May 2012)

Stewart and SunWater; Stanwell (Third Party) (Unreported, Queensland Information Commissioner, 21 December 2012)

Tol and The University of Queensland [2015] QICmr 4 (18 February 2015)

Seven Network (Operations) Limited and Department of Justice and Attorney-General; Carmody (Third Party) [2016] QICmr 22 (27 June 2016)

Queensland Newspapers and Department of Justice and Attorney-General; Carmody (Third Party) [2016] QICmr 23 (27 June 2016)

Queensland Newspapers and Department of Justice and Attorney-General; Carmody (Third Party) [2016] QICmr 24 (27 June 2016)

McKean and Department of Justice and Attorney-General; Carmody (Third Party) [2016] QICmr 25 (27 June 2016)