Person recorded as birth father in agency documents - a guide for applicants

This Information Sheet may be relevant to you if you are an adopted person who has applied (or who intends to apply) to a Queensland government agency under the Right to Information Act 2009 (RTI Act) or the Information Privacy Act 2009 (IP Act) for access to adoption records containing the name of the person recorded as your birth father.

Will I receive the information I am seeking from the agency?

While we understand that you may have a very strong desire to know this information, the provisions of the Adoption Act 2009 (Adoption Act) will probably prevent the agency from giving you the name of the person recorded as your birth father.

This approach has been confirmed by recent decisions of the Queensland Civil and Administrative Tribunal (QCAT)[1].

Why won’t I receive this information if I apply under the RTI Act or IP Act?

The way the RTI Act and IP Act interact with the Adoption Act means that you will probably not receive information about the person recorded as birth father in agency documents.

The Adoption Act

Under the Adoption Act, adoption workers and other Departmental[2] employees involved in the adoption process are subject to a strict code of confidentiality. They are not allowed to disclose ‘protected information’ to anyone other than the person who the information is about, or with that person’s consent.[3]

Identifying information about the person named as the birth father of an adopted person falls within the category of protected information.[4]

The RTI Act and IP Act

Under the RTI Act and IP Act, an agency may refuse access to a document if the document contains ‘exempt information.’[5]

Exempt information includes protected information under the Adoption Act[6] so the agency is entitled to refuse access to the document containing that information.[7]

For this reason, it is extremely unlikely that information relating to the identity of a person named as birth father will be released to you in response to an RTI Act or IP Act application.[8]

Will I receive the information I am seeking on external review?

External review is a process which allows decisions made by agencies under the RTI Act and IP Act to be independently reviewed by the Information Commissioner.

If you have applied to OIC for an external review, it is likely that you have received a decision from an agency refusing access to information about the person recorded as birth father in agency documents.

When considering your application for external review of this decision, the Information Commissioner must have regard to the relevant laws. As noted above, the disclosure of identifying information about the person named as birth father is prohibited by the Adoption Act and is therefore exempt information under the RTI Act.

The Information Commissioner does not have the power to direct an agency to give access to a document containing exempt information.[9]

Therefore, if an agency has denied you access to the information you are seeking, and the Information Commissioner establishes that it is exempt information, you will not receive that information on external review.

[1] BL v Office of the Information Commissioner, Department of Communities (BL v Office of the Information Commissioner) [2012] QCATA 149
[2] The relevant Department is the Department of Communities, Child Safety and Disability Services.
[3] See sections 314(2) and 314(4) of the Adoption Act.
[4] 7CLV4M and Department of Communities (7CLV4M), (Unreported, Queensland Information Commissioner, 21 December 2011) at [30]; BL v Office of the Information Commissioner at [21].
[5] See sections 47(3)(a) and 48 of the RTI Act. Section 67(1) of the IP Act provides that grounds for refusal apply in the same way and to the same extent as under the RTI Act.
[6] See section 12 of schedule 3 of the RTI Act.
[7] See sections 47(3)(a) and 48 of the RTI Act.
[8] 7CLV4M and Department of Communities (7CLV4M), (Unreported, Queensland Information Commissioner, 21 December 2011)
[9] See section 105(2) of the RTI Act; paragraph 21 of 7CLV4M.

Current as at: February 5, 2013