Barker and The Executive Resource Group Pty Ltd
(2006 F0134, 31 July 2006)
Section 9 – Definition of agency
The applicant sought access, under the Freedom of Information Act 1992 (the FOI Act), to documents in the possession of The Executive Resource (ER) Group, a private sector body engaged on a commercial basis by Queensland Rail to conduct the selection process for a position for which the applicant had applied. The ER Group refused to deal with the access application on the ground that it was not subject to the FOI Act. The applicant contended that the Act should extend to the ER Group as it was performing a function (recruitment and selection of public sector employees) which Queensland Rail would otherwise perform, and was being paid from the public purse to do so.
As the ER Group is not a Department or local government, it can only be an agency for the purposes of the FOI Act if it falls within the scope of any of the definitions of ‘public authority’ in s.9(1)(a)-(e). Assistant Commissioner Barker found that the ER Group did not meet the criteria of any of those subsections, and that public interest considerations are not relevant in determining whether a body is or is not a public authority. The applicant also argued that the Information Commissioner should take into account the Commonwealth FOI Act, which extends access provisions to outsourced functions of government in certain circumstances. AC Barker found, however, that the Queensland Act does not contain a similar provision, and that the Information Commissioner has no power to extend the definition of public authority under the Queensland FOI Act.