Application of section 47(3)(b) RTI Act

This part of the Annotation summarises the steps a decision-maker must take to determine whether disclosing information would, on balance, be contrary to the public interest.  For more detailed information about how the public interest test has been applied in particular contexts or in relation to particular documents, please see the ‘Public interest test applied - contexts’ part of this Annotation.  In addition, the ‘Public interest test applied - factors’ part of this Annotation provides links to decisions which have considered particular public interest factors listed in schedule 4, as well as links to FOI Act Annotations where FOI Act provisions operated in a similar way to the current RTI Act public interest factors.

Relevant considerations

1. What is the public interest?

The 'public interest' is the touch-stone for accessing information under the RTI Act and is distinct from and different to our private interests. The term 'public interest' refers to considerations affecting the good order and functioning of the community and government affairs, for the well-being of citizens generally. This means that ordinarily, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.1

2. How is the public interest determined?

Section 49(3) of the RTI Act requires a decision-maker to take the following steps to determine whether disclosing information would, on balance, be contrary to the public interest:

  • identify and disregard any factor that is irrelevant to deciding the public interest (including those factors mentioned in schedule 4, part 1 of the RTI Act) 
  • identify public interest factors favouring disclosing the relevant information (including those factors mentioned in schedule 4, part 2 of the RTI Act) 
  • identify public interest factors favouring nondisclosure of the relevant information (including those factors mentioned in schedule 4, parts 3 and 4 of the RTI Act) 
  • balance the factors favouring disclosing the relevant information against those favouring nondisclosure 
  • decide whether disclosing the information would, on balance, be contrary to the public interest.

3. Does release of documents to an applicant mean release to the world at large?

In OKP and Department of Communities,2 the Information Commissioner considered the decision of the Victorian Court of Appeal in Victoria Police v Marke3 and decided that the now repealed Freedom of Information Act 1992 (Qld) did not support the long held and widely utilised assumption that release of documents to an applicant is necessarily release to the world at large.4  While there is nothing to prevent or restrain an applicant from disseminating the documents to the general public once obtained, the Information Commissioner found in OKP that a decision maker should not exclude from consideration evidence about the intended or likely extent of dissemination of information by the applicant.5

1 (Unpublished OIC Preliminary View).
2 (Unreported, Queensland Information Commissioner, 9 July 2009) (OKP).
3 [2008] VSCA 218.
OKP at paragraph 129.
5 OKP at paragraph 128.

Last updated: March 28, 2012