Applications for investigation, complaint, and regulatory agency documents

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.

Investigations and complaints

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.

Regulatory agency documents

There will often be a strong public interest in releasing documents of regulatory agencies which can outweigh prejudice that disclosure may cause to business affairs. This is discussed in the section at the end of the guideline.

Exempt information

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 investigation,⁴ 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.

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.

Public interest factors

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

Factors favouring disclosure which commonly arise when processing applications for investigation or complaint documents include:

• information is the personal information of the applicant⁵
• enhancing the accountability of agencies⁶
• revealing background/contextual information to an agency decision⁷
• if the applicant was the subject of the complaint/investigation: administration of justice/procedural fairness⁸.

The Commissioner considered whether the procedural fairness public interest factors⁹ applied in:

• In l6XD0H and Department of Community Safety,¹⁰ the Commissioner decided that no procedural fairness issues arose because the investigation was complete, the disciplinary process was finalised, and the applicant had received considerable information about the investigation.
• In P6Y4SX and Department of Police,¹¹ the Commissioner found that no procedural fairness issues arose because the applicant had an opportunity to refute the allegations during the investigation, which had finalised the matter and cleared the applicant of any wrongdoing.

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.¹²

Factors favouring non-disclosure

Personal information of people other than the applicant

Applicants will generally be given access to their own personal information (although there may be exceptions). Giving access to other people’s personal information¹⁴, or to information that infringes someone’s right to privacy¹⁵, 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.

Prejudice a management function¹⁶

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 investigations¹⁷. Where releasing information would have this affect access may be refused where, on balance that release would be contrary to the public interest.¹⁸

Prejudice the flow of information

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 information¹⁹ then access may be refused where, on balance that release would be contrary to the public interest.²⁰

Unsubstantiated allegations and prejudice to fair treatment of individuals

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:

• the information consists of unsubstantiated allegations of wrongdoing; and
• disclosing the information could reasonably be expected to prejudice the fair treatment of individuals.²¹

If the information satisfies both of these points release may, on balance, be contrary to the public interest.²²

Other public interest factors

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.²³

Regulatory agency investigations

Investigations are a standard part of regulatory agencies' compliance activities. The above information applies to documents created during those investigations, however the Commissioner has specifically considered documents created by regulatory agencies during their regulatory functions,²⁴ including:

• improvement notices
• audit reports
• corrective action requests
• Office of Liquor and Gaming Regulation documents linked to the Liquor Enforcement and Proactive Strategy; and
• Workplace Health and Safety records in relation to the regulation of amusement rides and ride operators.

These kinds of documents (regulatory documents) will generally record details of how a complaint about a breach of an Act was assessed, investigated, and finalised and whether the official was satisfied on a reasonable basis that a breach occurred.

When considering whether it would be contrary to the public interest to disclose regulatory documents, it can be useful to consider where those documents fall on the line between unsubstantiated allegations,²⁵ and documents which have been the subject of finalised court proceedings.²⁶

In relation to regulatory documents, the Commissioner has found that disclosure would not be contrary to the public interest because the potential prejudice to business affairs was outweighed by factors favouring disclosure including:

• accountability and positive informed debate²⁷
• the public interest in revealing environmental or health risks or measures relating to public health and safety;²⁸ and
• the public interest in a safe and competitive market²⁹.

In Australian Workers’ Union and Queensland Treasury; Ardent Leisure Limited (Third Party)³⁰ the Commissioner considered whether records held by Workplace Health and Safety Queensland (WHSQ) in relation to safety complaints about amusement rides and ride-related plant and machinery would, on balance, be contrary to the public interest to disclose. The Commissioner found that:

• a moderate prejudice to the commercial affairs of the relevant amusement ride operator and its willingness to cooperate with WHSQ in the future was outweighed by the significant weight that could be attributed to the public interest factors listed above; and
• there was a clear public interest in the community being able to discuss and understand the way in which regulatory agencies such as WHSQ perform their responsibilities under legislation and that this had heightened importance in the context of public safety issues relating to amusement rides.