Application of section 55 RTI Act

Relevant considerations

1. When is this provision used?

Section 55 of the RTI Act provides that an agency may neither confirm nor deny the existence of a type of document.  The purpose of including a provision of this kind in information access legislation has been explained as follows:1

A particular problem that arises in relation to the giving of reasons and particulars … is the position of the decision-maker when … confronted with a request for a document which is manifestly exempt from disclosure, but where the character of the document is such that the mere acknowledgment of its existence, albeit accompanied by a denial of access, will itself cause the damage against which the exemption provision is designed to guard… 
We agree that there will, on occasion, be a need for an agency to refuse to acknowledge the very existence of a document. However … it ought to be confined to … classes of documents which by their very nature are likely to be widely accepted as especially sensitive.

As the primary object of the RTI Act is to give a right of access to Queensland government information (subject to public interest considerations), this provision is only intended for exceptional situations where:2 

  • revealing that the agency has or does not have documents in response to an application, due to the specific nature of the wording of the application, would reveal information to which an agency would normally refuse access on the grounds that it would be exempt or contrary to the public interest; or
  • there are legitimate grounds for refusing access to a document but explaining those grounds would reveal the information the agency is trying to protect or cause the harm the agency is trying to prevent.

2. Would the relevant documents, if they existed, contain ‘prescribed information’?

Section 55 of the RTI Act provides that an agency is not required to give information as to the existence or non-existence of the documents containing ‘prescribed information’.  This precondition must be satisfied before section 55 of the RTI Act may be relied upon. 

‘Prescribed information’ is defined in schedule 6 of the RTI Act to include:

  • Cabinet matter brought into existence before 1 July 20093
  • Cabinet information brought into existence on or after 1 July 20094
  • Executive Council information5
  • information briefing an incoming Minister6
  • information revealing particular Sovereign communications7
  • national or State security Information8
  • law enforcement or public safety information9
  • personal information the disclosure of which would, on balance be contrary to the public interest.10

1 Report by the Senate Committee on Constitutional and Legal Affairs (1979) on the draft Commonwealth Freedom of Information Bill (at page 121, point 9.27).

2 Australian Broadcasting Association and Psychologists Board of Australia (Unreported, Queensland Information Commissioner, 3 January 2012) at paragraph 14.

3 See schedule 3, section 1 of the RTI Act.

4 See schedule 3, section 2 of the RTI Act.

5 See schedule 3, section 3 of the RTI Act.

6 See schedule 3, section 4 of the RTI Act.

7 See schedule 3, section 5 of the RTI Act. 

8 See schedule 3, section 9 of the RTI Act.

9 See schedule 3, section 10 of the RTI Act. 

10 See section 47(3)(b) of the RTI Act.

Last updated: November 20, 2013