Key published decisions applying Schedule 3, section 12 RTI Act
Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012)
The applicant sought access to all documents relating to him held by the Department of Communities, Child Safety and Disability Services (Department), including any reference to himself as flatmate, carer or support person of a woman with whom he shared accommodation.
The Assistant Information Commissioner considered the application of schedule 3, section 12 of the RTI Act which provides that information is exempt (under section 48 of the RTI Act) if its disclosure is prohibited by sections 186 – 188 of the Child Protection Act 1999 (Qld) (CP Act). Section 187 of the CP Act makes it an offence to disclose certain information obtained under the CP Act.
For this exemption to apply, the information must:
a) be about a person’s affairs
b) have been received by a listed person performing functions under or relating to the administration of the CP Act; and
c) not be subject to an exception in section 187 of the CP Act.
The Assistant Information Commissioner was satisfied that access to the information may be refused under this exemption. Neither the exception in section 187(4)(a) of the CP Act nor section 12(2) of schedule 3 of the RTI Act was found to apply as the personal information of individuals other than the applicant could not be separated from the personal information of the applicant.
Importantly, a written consent to release information provided by the flatmate could not be taken into consideration as:
- the Assistant Information Commissioner did not have the same discretion to release exempt documents as the Department; and
- the consent could not override Parliament’s intention that information of this type is exempt information to which access may be refused.
The applicant, a corporation, sought access to documents held by the Office of State Revenue concerning the applicant and its director. The information in issue was found to be exempt under schedule 3, section 12 of the RTI Act as it comprised ‘personal confidential information’ acquired by an official in the official’s capacity, the disclosure of which is prohibited under Part 8 of the Taxation Administration Act 2001 (Qld) (TA Act).
The exception in schedule 3, section 12(2) of the RTI Act did not apply as the applicant is a corporation and only individuals (ie. natural persons under the Acts Interpretation Act 1954 (Qld) (AI Act)) can have personal information for the purpose of the RTI Act. However, the information in issue was considered ‘personal confidential information’ under the TA Act as the operation of sections 36 and 32D(1) of the AI Act, under which the term ‘person’ in an Act includes individuals and a corporation, was not displaced for the purposes of the TA Act.
The applicant sought access to information about her mother's pregnancy and her adoption. The Department of Communities (Department) refused access to the name of the person the birth mother identified as the birth father in the applicant's adoption records on the basis that its disclosure would, on balance, be contrary to the public interest. On external review, the Assistant Information Commissioner was satisfied the relevant information was exempt under schedule 3, section 12 of the RTI Act on the basis that it comprised exempt information as its disclosure was prohibited by the Adoption Act 2009 (Qld) (Adoption Act).
Does the information contain only the applicant's personal information?
The Assistant Information Commissioner was satisfied the relevant information contained the applicant's personal information and the personal information of the named person, comprising their name appearing within the adoption record. [25] The exception in schedule 3, section 12(2) of the RTI Act did not apply as the information in issue did not contain only the applicant's personal information. [25]
Is disclosure prohibited by a provision listed in schedule 3, section 12(1)?
Section 314 of the Adoption Act is a provision listed in schedule 3, section 12(1) of the RTI Act. The Assistant Information Commissioner was satisfied that, for information to be prohibited from disclosure under section 314 of the Adoption Act, the information must: [12]
- be protected information as defined in section 314 of the Adoption Act (that is, information about a person's personal affairs or personal history);
- have been received by a listed person performing functions under or relating to the administration of the Adoption Act; and
- not be subject to an exception listed in section 314 of the Adoption Act.
Is the relevant information protected information?
Under section 314 of the Adoption Act, protected information is information about the person's personal history or the person's affairs. [27] The Assistant Information Commissioner considered the relevant dictionary definition of 'affairs' which included 'matters of interest or concern' and 'a private or personal concern' and was satisfied that a person being named by the birth mother as the father of a child is a matter of interest and a private concern of the person named. [30] Accordingly, the Assistant Information Commissioner found the person's name was protected information as defined in section 314(10) of the Adoption Act. [30]
Was the relevant information received by a relevant person performing functions under or relating to the administration of the Adoption Act?
A public service employee is a person to whom section 314 applies.1 As the relevant information was contained in a Departmental file and was recorded by a Departmental employee in the course of performing functions under the adoption Act the Assistant Information Commissioner considered this requirement was satisfied. [31]
Do any exceptions listed in section 314 of the Adoption Act apply?
The Assistant Information Commissioner was satisfied that none of the exceptions listed in section 314 of the Adoption Act applied to the relevant information. Namely, disclosing the relevant information was not required or permitted under another law, there was no consent to disclosing the relevant information by the relevant person and the relevant information was not non-identifying information capable of being disclosed under the Adoption Act. [35, 38, 41]
As the relevant information did not only contain the applicant's personal information and the relevant was prohibited from disclosure under section 314 of the Adoption Act, the Assistant Information Commissioner was satisfied the information was exempt information under schedule 3, section 12 of the RTI Act.
SYT and Department of Health (Unreported, Queensland Information Commissioner, 15 March 2010)
The applicant sought access under the IP Act, to all information relating to herself held by the Department of Health (QH). QH refused access to a number of documents under section 47(3)(a) of the RTI Act on the basis that the documents comprised exempt information under schedule 3, section 12.
Does the information contain only the applicant's personal information?
After reviewing the relevant information, the Information Commissioner was satisfied that the information consisted of personal information of the applicant as well as personal information of other persons that could not be separated by deletion or severance. In this situation, the Information Commissioner found that the exception in schedule 3, section 12(2) did not apply to the exempt information. [33]
Is disclosure prohibited by a provision listed in schedule 3, section 12(1)?
The Information Commissioner found that disclosing the relevant information was prohibited by a provision listed in schedule 3, section 12(1) and was therefore exempt from disclosure under section 47(3)(a) and schedule 3, section 12 of the RTI Act. [28]
- 1 Section 314 of the Adoption Act. [up]
Last updated: May 20, 2013