The object of the Right to Information Act 2009 (Qld) (RTI Act)1 is to give a right of access to information in the government's possession or under the government's control unless, on balance, it is contrary to the public interest to give the access.
It is common for people who have been involved in an agency investigation or made a complaint to an agency to apply for access to related documents. In many cases, it will be contrary to the public interest for access to be given to investigation and complaint documents. Decisions of the Information Commissioner have consistently upheld agency2 decisions to refuse access to these kinds of documents on the grounds discussed in this guideline3.
This guideline does not discuss investigations conducted by or referred back to the agency by the Crime and Corruption Commission. For further information refer to: Crime and Corruption Commission.
Schedule 3 of the RTI Act lists information that is exempt from release without the need to undertake any further public interest considerations. If an agency decides information falls within one of the provisions in schedule 3, for example because it is confidential complaint information or would prejudice an ongoing investigation4, it is permitted to refuse access to it without any further public interest considerations. This is because Parliament has already decided the information listed in schedule 3 is contrary to the public interest to release.
Sections of schedule 3 part 10: Law enforcement or public safety information provision may apply when an agency is conducting an investigation. For further information refer to: Law enforcement and public safety.
If information does not fall within schedule 3, the agency will have to consider the factors listed in schedule 4 to decide if the information is contrary to the public interest to release.
Schedule 4 of the RTI Act lists public interest factors for and against disclosure. Decision makers must identify all relevant factors and balance them to decide if it would be contrary to the public interest to give access to documents. The public interest factors are non-exhaustive, allowing agencies to identify new public interest factors if required.
Factors favouring disclosure which commonly arise when processing applications for investigation or complaint documents include:
When deciding what weight to give the middle two factors the agency’s actions, and any information given to the applicant, during the investigations will be relevant. For example, if the applicant was provided with information during the investigation process, was given procedural fairness, and had the agency decision explained to them, a decision maker might assign very little weight to those factors.9 In relation to the last factor, it may not apply, or may no longer be relevant, where the agency takes no action on a complaint or discontinues compliance action against the applicant.10
Decision makers should consider relevant agency policies, and may want to speak to the business unit which conducted the investigation or dealt with the complaint, as part of making this decision.11
Applicants will generally be given access to their own personal information (although there may be exceptions). Giving access to other people’s personal information12, or to information that infringes someone’s right to privacy13, may, on balance, be contrary to the public interest depending on the factors favouring disclosure. This includes any information that would allow an applicant to work out the identity of someone who made a complaint. If the personal information of the applicant and the personal information of the other person cannot be separated then it may be necessary to refuse access to all the information.
When a matter is investigated internally, agency staff involved in the workplace investigation generally provide information on the understanding that it will only be used for the investigation and any subsequent disciplinary action. It is reasonable to expect staff to cooperate with an investigative process and provide information; it is also reasonable to expect that disclosing this information could make staff reluctant to fully participate in, or to provide full and complete information to, future investigations15. Where releasing information would have this affect access may be refused where, on balance that release would be contrary to the public interest.16
Agency investigators rely on the free flow of information from witnesses and complainants. If giving access under the RTI Act to information they have provided would mean that, in the future, witnesses or complainants would be less likely to provide information17 then access may be refused where, on balance that release would be contrary to the public interest.18
In some cases, the applicant will be a complainant seeking access to documents about the actions agency took in relation to their complaint. In these circumstances, decision makers will have to consider whether:
If the information satisfies both of these points release may, on balance, be contrary to the public interest.20
The RTI Act contains nineteen public interest factors favouring disclosure and thirty two favouring non-disclosure; these lists of factors are not exhaustive. It is always open to an agency to identify other relevant public interest factors not listed in the RTI Act and apply them to an RTI application.21
Current as at: December 17, 2018