Access applications for workplace surveys

The Right to Information Act 2009 (Qld) (RTI Act) allows anyone to apply for documents held by a Queensland government agency¹. This includes workplace surveys and documents arising from, related to, or created based on workplace surveys (referred to in the guideline as workplace survey documents).

This guideline explains what an agency may need to consider if it receives an application under the RTI Act for workplace survey documents.

What is a workplace survey?

Workplace surveys are surveys conducted by an agency of some or all of its staff. They generally relate to topics such as staff satisfaction, concerns, perceptions of their work, supervisors, and/or agency. They may also ask questions related to personal attributes of staff or include free text fields that let staff provide comments.

One example is the Working for Queensland survey conducted annually by Queensland State government agencies.

Access to documents

The right to apply for documents under the RTI Act does not guarantee that the documents will be disclosed. An agency can refuse access if the documents are exempt or disclosure would be contrary to the public interest.

Exempt information

Information is exempt from release if it falls within one of the categories in schedule 3 of the RTI Act.

Breach of confidence

Information will be exempt² if its disclosure could found an action for breach of confidence.³ Breach of confidence can be based on a contractual obligation of confidence or, if it meets these four criteria⁴, an equitable obligation of confidence:

• (a)  the information in question must be identified with specificity
• (b)  it must have the necessary quality of confidence
• (c) it must have been received in circumstances importing an obligation of confidence; and
• (d)  there must be an actual or threatened misuse of the information.

When considering workplace survey documents, it will generally be difficult to establish an equitable obligation of confidence where information cannot be attributed to specific employees.

Where an agency has outsourced the conducting of a workplace survey, any confidentiality clause in the contract must be considered to determine:

• to whom the obligation of confidentiality applies
• what information it applies to; and
• whether it has exceptions or permits any use, disclosure, or publication of material derived from the workplace surveys.

Application of the breach of confidence exemption to workplace survey documents was discussed in Star News Group Pty  Ltd and  Southern  Downs Regional Council [2019] QICmr 39 (12 September 2019) (Star News).

In Star News, the Commissioner found that the workplace survey documents comprising a report authored by a consultant retained by Council to undertake a review and a document created by council used to present the review outcomes to Council staff were not exempt from release under the breach of confidence exemption. No information provided by individual employees to Council’s consultants was included, that is no employees were identified nor was information attributed to any specific employee. Key factors in that decision included:

• despite the Council's claim that staff received multiple undertakings that the process would be confidential, there was no detail provided about those undertakings
• contractual confidentiality provisions bound the consultant who conducted the surveys not to disclose information, but they placed no similar obligations on the Council nor did they refer to undertakings given to staff who participated in the review
• some of the information was in the public domain
• there were no markings indicating that the documents were confidential
• Council provided no evidence to indicate it was given the documents in circumstances requiring the Council or staff to keep them confidential
• no evidence was provided indicating disclosure under the RTI Act would be an actual or threatened misuse of the information.

Contrary to the public interest to release

If documents are not exempt from release, an agency must consider if they contain information that would be contrary to the public interest to release. Information will be contrary to the public interest to release where the public interest factors against disclosure outweigh the public interest factors favouring disclosure.

Irrelevant considerations

Before considering the public interest factors for and against release, agencies must identify and disregard any and all irrelevant factors. These are listed in schedule 4 of the RTI Act and include that the applicant may do something mischievous with the information, may misinterpret or misunderstand it, and that the information may be embarrassing to the agency. These potential outcomes may concern an agency, but they must be explicitly disregarded when making a decision. However, there is nothing in the RTI Act that prevents an agency from including additional, contextual information when releasing documents in response to an RTI application.

For example, if workplace survey documents show that agency staff were unhappy or dissatisfied, but the agency has done significant work to address these concerns, the agency could include information about its efforts and their positive impacts with the released documents.

Factors favouring non-disclosure

Personal information and privacy

Personal information is any information about an individual who can reasonably be identified.⁵ Even where surveys are intended to be anonymous, staff members may be identifiable, for example because of:

• a unique characteristic of the staff member
• information provided in free text fields
• the limited number of participants; or
• the size of the agency and the surrounding community.

This is explained in detail in the Conducting workplace surveys and Surveys and the privacy principles guidelines. Decision makers should refer to those guidelines when determining if information potentially identifies a staff member or members.

Staff responses to workplace surveys will rarely, if ever, be routine personal work information, as they fall outside staff members' day to day routine duties.⁶ If there is staff personal information in workplace survey documents, agencies should consider the public interest factors that relate to personal information and privacy⁷.

If the identities of staff cannot be discerned from the workplace survey documents, then these factors will not apply.

Flow of information

There are also public interest factors against disclosure that apply where:

• disclosure of information could reasonably be expected to prejudice an agency’s ability to obtain confidential information (called the confidential prejudice factor); and
• information is of a confidential nature that was communicated in confidence and disclosure could reasonably be expected to prejudice the future supply of this type of information (called the confidential harm factor).

These were both discussed in Star News in the context of workplace survey documents.

Both factors require the information to be of a confidential nature. A confidential nature requires that the information is attributable to specific people, have the necessary quality of confidence, and, for the Confidential Harm Factor, an understanding of confidence must attach to it.

Even if the information's confidential nature can be established, both factors have an additional requirement—that its disclosure could reasonably be expected to prejudice the future supply of either confidential information or information of the kind in question.

Management function of an agency

There are two factors against disclosure that relate to the management functions of an agency: the management prejudice factor and the management harm factor.

• The management prejudice factor arises when disclosure of information could reasonably be expected to prejudice the management functions of an agency or the conduct of industrial relations by an agency.⁸
• The management harm factor recognises that a public interest harm arises where disclosure could have a substantial adverse effect on:
  • the management or assessment by an agency of the agency’s staff; or
  • the conduct of industrial relations by an agency.⁹

The factors are much more likely to apply and, if they apply, to be weighted heavily, where information is personal information. Where information cannot be linked to identifiable staff members it will be harder to satisfy these factors; even if satisfied, they will likely attract only a low weight.

Factors favouring disclosure

Openness and Transparency

There is an expectation that agencies subject to the RTI Act will conduct themselves in an open and transparent way. This is reflected in the public interest factors¹¹ which recognise that disclosure of information could reasonably be expected to:

• promote open discussion of public affairs and enhance the Government’s accountability; and
• reveal the reason for a government decision and any background or contextual information that informed the decision.

Given the purpose of most workplace surveys, workplace survey documents will generally raise these factors¹² because they:

• contain information about how staff view the agency's engagement with its workforce
• give insight into how the agency achieves best practice in delivery of services to the public; and/or
• provide information about staff engagement across an agency's workforce.

Government expenditure

Where an agency engages an external contractor or consultant to conduct the workplace survey, it will generally raise¹³ the public interest factor relating to ensuring effective oversight of expenditure of public funds¹⁴.

This factor will apply regardless of whether the documents contain details about the contract or information about the amount of expenditure.

Community understanding, information, and debate

Two public interest factors that relate to community interest in disclosure of information are:

• Disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest.¹⁵
• Disclosure of the information could reasonably be expected to inform the community of the Government’s operations.¹⁶

Generally, there will be a community interest surrounding workplace survey outcomes.¹⁷ As part of meeting this community interest, over 60 agencies publish their Working for Queensland survey results annually.

When considering workplace survey documents, factors that agencies should consider include:

• the extent to which the documents show the outcome of the agency's decision to conduct/commission the survey
• the extent to which the documents show the actions taken, including a lack of action taken, as a result of the survey
• the amount of information, or lack of information, the agency has made available to the community¹⁸.

Publication

The RTI Act intends formal applications to be a last resort and encourages agencies to actively push information out to the public. Agencies could consider making summaries of workplace survey results available on their websites.