Under the Right to Information Act 2009 (Qld) (RTI Act)1, people can apply to access documents held by Queensland government agencies. If a third party could be concerned about an agency releasing some of those documents, the agency has to consult with them.2
This may require access applicants and consulted third parties to deal with the concept of confidentiality. It may be part of an agency decision, and access applicants may need to discuss it with agency decision makers or consider it when deciding whether or not to seek a review. Consulted third parties may need to decide whether to object to the release of documents, and if so, whether or not the information in the documents is confidential.
This information sheet provides a basic introduction to the concept of confidentiality for access applicants and consulted third parties, and covers what is required to establish that information is exempt because it is confidential under the RTI Act.
An agency decision maker can refuse access to information because it is exempt information or because it is contrary to the public interest information.3
Confidential information may be exempt from release if it would breach a contractual confidentially clause or if it meets four specific criteria.
There is also strong a pro-disclosure bias under the RTI Act. For example, if a company contracts with an agency and is paid from public funds, that raises strong public interest factors favouring release of the information, including enhancing government accountability and ensuring effective oversight of expenditure of public funds.
The four criteria are set out below. Information must pass all of the criteria; if it fails even one, it will not be exempt from release. The criteria are:
Even if the information can't pass all the criteria, it could still raise public interest factors against release. If those outweigh the public interest factors favouring release, the information will be contrary to the public interest to disclose
The identity of people who make complaints to an agency is, except in extraordinary circumstances, contrary to the public interest to release. One of the reasons for this is because releasing it would prejudice the agency's ability to obtain confidential information.
For more information, refer to the Information Sheet: Applying for complaint documents.4
Confidentiality is often referred to in situations when another concept would be more appropriate, or where it simply does not apply.
Marking documents as 'confidential' or 'commercial in confidence' has no effect on whether the information they contain is confidential. Agency decision makers will carefully consider the contents of all documents to decide if their contents:
Many emails have automatic disclaimers added to the bottom that state they are confidential. This does not make the emails confidential, and agency decision makers will still need to consider the information in the email to decide if it satisfies the five tests for confidentiality or if it is contrary to the public interest to release.
There are public interest factors against release that relate to personal information5 and privacy6. These can weigh heavily against refusal of access, particularly where the information is highly personal, such as medical records.
While personal information may sometimes be able to pass the four tests to be ‘confidential’, privacy and personal information are not the same as confidentiality.
Current as at: July 18, 2019