This information sheet is intended to assist people who have been involved in a workplace investigation and are now applying to access documents about, or arising out of, that investigation. It does not apply to documents which relate to a Crime and Corruption investigation or a non-workplace complaint.
Can I apply for the documents?
The Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act) give people the right to apply to Queensland government agencies for access to documents. However, access to those documents may be refused if information in the documents is exempt or contrary to the public interest to release.
Will I get access to the documents?
You are not likely to be granted access to all the documents you are seeking. You will likely get access to documents that contain only your personal information and to procedural documents.
Some of the documents you apply for may contain information that is, on balance, ‘contrary to the public interest’ to disclose. You may not be given access to these documents. For example, other people’s personal information (such as other people’s witness statements) is generally considered to be contrary to the public interest to disclose and you are not likely to get access to that.
What is ‘contrary to the public interest’ to disclose?
The RTI Act contains lists of public interest factors. Some of these are factors which favour disclosing information and some of them are factors which favour not disclosing information.
When making a decision about whether or not to release a document, the decision maker identifies the relevant factors and weighs the ones favouring disclosure against the ones favouring non-disclosure. Information that the decision maker decides would, on balance, be contrary to the public interest to disclose does not have to be released.
You do not have to give reasons for wanting to access the documents you are applying for, but in some cases doing so may help the agency identify factors favouring disclosure, for example if you are seeking access to the documents so you can take a private legal action against someone.
What is the public interest?
The public interest refers to considerations affecting the good order and functioning of the community and government for the well-being of the public.
The notion of the public interest is usually treated as separate from matters of purely private or personal interest.
What information will generally be contrary to the public interest to disclose?
Personal information of other people
You will generally be given access to your own personal information. Releasing someone else’s personal information (such as other people’s observations, opinions, complaints or recollections) or information which infringes their right to privacy has been found to be contrary to the public interest. You may be refused access to this sort of information.
In some circumstances it will not be possible to separate your personal information from the personal information of other people. An example of this may be a witness statement containing the thoughts and feelings of another person about an incident or situation which you were involved in. If it is not possible to separate personal information, access to all of the personal information—yours and the other people’s—may be refused.
Information which could prejudice a management function
Giving access to information which could have a negative impact on the management of staff has regularly been found to be contrary to the public interest. If giving access would tend to result in staff being less forthcoming in future investigations it will have a negative impact on staff management.
Staff usually supply information to workplace investigators on the understanding that it will only be used for the investigation or any subsequent disciplinary action. It is reasonable to expect staff to cooperate with an investigative process. However, if disclosing the information under the RTI Act could make staff reluctant to fully participate in, or to provide full and complete information to, future investigations, you are likely to be refused access to information that staff have provided.
Prejudice the flow of information
It has been previously decided that releasing information that could prejudice the flow of confidential information to government is contrary to the public interest. For example, where witnesses understand that the information they provide to investigators will be held in confidence and they would be less likely to provide that information in the future if it is released, that sort of information may not be disclosed.
What about accountability in conducting investigations?
There will often be a broad public interest in the agency being accountable to the public for its actions. It is necessary, however, for the facts in each case to be considered to decide whether the interest in accountability is:
- favoured by disclosing the information in question
- strong enough to outweigh the specific factors against disclosure.
In most cases, the broad general interest in accountability has not been found sufficient to outweigh the above factors against disclosure.
What about procedural fairness?
Applying for information through the RTI process is separate to a workplace investigation process. Individuals involved in disciplinary proceedings in the workplace are entitled to procedural fairness. Agencies are required to notify employees the subject of disciplinary proceedings of the allegations against them and give them an opportunity to respond. They are also required to advise an employee the subject of proceedings of the outcome of those proceedings.1 These actions will generally discharge any obligations of procedural fairness.
In some limited circumstances, giving access to information through RTI may help to ensure an individual receives procedural fairness. However, the requirements of procedural fairness will generally be met without giving access to every document related to the investigation. For example, in most cases, the administration of justice and procedural fairness requirements will not be advanced by providing you with a copy of the witness statements or the complaint made, particularly if you have already received a summary of this information from your workplace as part of the disciplinary process.
- 1 See the Public Service Commission’s Chief Executive Guideline 01/13: Discipline and the Public Service Act 2008 (Qld), chapter 6.
Current as at: July 1, 2014