The Right to Information Act 20091(Qld) (RTI Act) creates a right of access to documents held by an agency2. This right is subject to some limitations: access may be refused to exempt information or information it would be contrary to the public interest to release and certain documents are not subject to the access provisions of the RTI Act3.
Documents to which the RTI Act does not apply
The RTI Act does not apply to coronial documents while a Coroner is investigating a death to which the documents relate.4 Once the investigation is finalised, the documents can once again be applied for under the RTI Act.5
The RTI Act does not apply to Coroners in relation to their judicial functions. Applications cannot be made to the Coroner for documents that relate to any judicial function.
Coronial documents are documents which were specifically prepared for a Coroner’s investigation or inquest, such as:
- an autopsy certificate, autopsy notice or autopsy report
- a report from a police officer helping a Coroner about the investigation into a reportable death; and
- a record of the Coroner's findings and comments.6
Coronial documents commonly include the pathologist’s preliminary advice to the Coroner, toxicology certificates, police photographs of the death scene, police reports to the coroner, witness statements, independent reports commissioned by the Coroner or on behalf of another person specifically to inform a coronial investigation or inquest, and the Coroner’s findings.7 Coronial documents do not include investigation documents.
Not all documents provided to the Coroner as part of a Coroner’s investigation by an agency will be coronial documents. Section 13 of the Coroners Act 2003 (Coroners Act) gives the Coroner a broad power to request documents from an agency. Documents given to the Coroner under this power will generally have been created for a purpose other than the coronial investigation.
Agency documents which are part of a coronial investigation but are not coronial documents are referred to as investigation documents. Investigation documents are not excluded from the RTI Act and any application for them must be processed by the agency. When deciding whether a document is a coronial document or an investigation document it is important to consider why the document was created.
Some examples of investigation documents include suicide notes, CCTV footage, SMS or email messages, telephone recordings, medical records, Medicare and prescription history records, departmental records, internal policy and procedure documents and the outcomes of internal incident reporting and review processes (e.g. clinical incident reviews or safety analyses) or other investigative processes.8
Administrative access to coronial and investigation documents
Interested parties can approach the Coroner directly to seek access to documents as set out in Chapter 10 of the State Coroner’s Guidelines.9 The Coroner will determine whether the person has sufficient interest in a document by considering their connection with the deceased person and the circumstances of their death. Family members will generally be entitled to access coronial information at appropriate stages during an investigation.
A deceased person’s spouse may need access to an autopsy report to process a life insurance claim and a person injured in the fatal event may also need it to assist their claim against the deceased person’s estate.10
Access to investigative information may also be given to those appearing, or given leave to appear, at an inquest or to others deemed to have sufficient interest, subject to conditions set by the Coroner.
Applications for coronial or investigation documents
If an application is for investigation documents11, the application can be processed in the standard way. If the application is for coronial documents, the application must be dealt with under section 32 of the RTI Act.
Dealing with applications for coronial documents – current investigation
Section 32 of the RTI Act sets out how an agency is to deal with an application for documents to which the RTI Act does not apply. As set out in schedule 1, section 8, coronial documents are not subject to the RTI Act while a coroner’s investigation is ongoing.
Within ten business days of receiving the application the decision maker must give the applicant prescribed written notice12 of their decision that the documents are ones to which the Act does not apply. This is a reviewable decision.
Generally, an agency will not receive an application that only captures coronial documents. Applications for documents relating to a coronial investigation will often capture both coronial documents and investigation documents.
This can create difficulties as there is no power for an agency to split an application into two parts and, once a decision is made under section 32 of the RTI Act, the decision maker no longer has any decision making powers in relation to the application.
The decision maker should contact the applicant and explain the situation. If the applicant is willing to exclude coronial documents from the application, the decision maker can continue to process the application for the remaining investigation documents. If the applicant is not willing to exclude the documents, the decision maker will have to issue a prescribed written notice under section 32(2) for the entire application.
Decision makers should make the applicant aware that they may be able to get access to documents directly from the Coroner as set out in the State Coroners Guidelines, particularly if the applicant is a family member of the deceased.
Deciding applications for investigation documents
Applications for investigation documents13 should be processed taking into account any relevant exempt information provisions and/or public interest factors. Applications for Investigation and Complaint Documents and Application for Medical Records of the Deceased may also be relevant, depending on the scope of the application.
Schedule 3 of the RTI Act lists information that is exempt from release without the need to undertake any further public interest considerations.
Exempt information provisions that may be relevant include:
- section 7, information subject to legal professional privilege
- section 8, disclosure could found an action for breach of confidence; or
- section 10, law enforcement or public safety information.
If a decision maker decides information falls within one of the provisions in schedule 3 they can refuse access without any further public interest considerations. If information does not fall within schedule 3, the agency will have to consider the public interest factors listed in schedule 4 to decide whether 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 the information. The public interest factors are non-exhaustive, allowing agencies to identify new public interest factors if required.
Some factors favouring disclosure that may be relevant to investigation documents include:
- information is the personal information of the applicant’s family member
- enhancing the accountability of agencies; and
- revealing background/contextual information to an agency decision.
Some factors favouring non-disclosure that may be relevant to investigation documents include:
- the information is personal information of people other than the applicant (including information about a deceased person)
- disclosure could prejudice the flow of information; and
- the information reveals unsubstantiated allegations and could prejudice the fair treatment of individuals.
Consultation with the Coroner
If an agency decides to release a document and believes the Coroner would reasonably be concerned about its disclosure, they must consult the Coroner.14 Consultation should be done through the Department of Justice and Attorney-General’s RTI Unit.
- 1 And chapter 3 of the IP Act.
- 2 In this guideline, agency includes a Minister.
- 3 As set out in section 11 and schedule 1 of the RTI Act.
- 4 Schedule 1, section 8 of the RTI Act. Schedule 1, section 8 does not include an agency’s coronial documents that were given to, or accessed by, the agency under the Coroners Act 2003 (Coroners Act), sections 25, 54, or 54A.
- 5 Decision makers may need to contact the Coroner to determine the status of the investigation.
- 6 Schedule 2, Coroners Act. Coronial documents do not include a record, or a copy of a record, of an inquest made under the Recording of Evidence Act 1962 (Qld). The definition of coronial documents in schedule 5 of the RTI refers to the Coroners Act.
- 7 State Coroner’s Guidelines 2013, Chapter 10, page 6.
- 8 State Coroner’s Guidelines 2013, Chapter 10, page 7.
- 9 Office of the State Coroner, State Coroner’s Guidelines 2013, Chapter 10 <http://www.courts.qld.gov.au/__data/assets/pdf_file/0014/206141/osc-state-coroners-guidelines-chapter-10.pdf>.
- 10 State Coroner’s Guidelines 2013, Chapter 10, page 4.
- 11 Or for coronial documents relating to a finalised Coroner’s investigation.
- 12 The requirements of a prescribed written notice are set out in section 191 of the RTI Act.
- 13 Or for coronial documents relating to a finalised Coroner’s investigation.
- 14 Under section 37 of the RTI Act.
Current as at: September 11, 2018