The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies.2 This right of access is subject to some limitations. These limitations include information which is exempt from release and information which would, on balance, be contrary to the public interest if released.
Exempt information is information that Parliament has considered would, on balance, be contrary to the public interest to release.3 Schedule 3 of the RTI Act lists the types of information that are exempt information.
The RTI Act is not, however, intended to prevent or discourage the giving of access to exempt documents. It remains open to an agency or Minister to give access under the RTI Act to exempt documents sought in an access application.4
CCC exempt information provision
Schedule 3, section 10(4) of the RTI Act provides that information is exempt if it was obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in performance of the prescribed functions of the prescribed crime body. A ‘prescribed crime body’ is defined in the RTI Act as the Crime and Corruption Commission (CCC)5.
This exemption is referred to as the CCC exempt information provision.
This exemption previously applied to the Crime and Misconduct Commission (CMC). From 1 July 2014, the CMC was renamed the CCC and the CCC became the current ‘prescribed crime body’ in Queensland6. The impacts of this change are set out at the end of this guideline.
Obtained, used or prepared
The terms ‘obtained, used, or prepared’ are not defined in the RTI Act or the Acts Interpretation Act 1954 (Qld) and so the Information Commissioner has given the words their ordinary meaning.
In Springborg, MP, and the Crime and Misconduct Commission6 (Springborg) the Information Commissioner said that ‘prepared’ in the equivalent section of the now repealed Freedom of Information Act 1992 means ‘compose and write out, draw up (a text or document)...produce or form...manufacture, make’ as set out in the New Shorter Oxford Dictionary.
‘Investigation’ is not defined in the RTI Act. The Information Commissioner has said that investigation in this context has the same meaning as in the Crime and Corruption Act 20017 (CC Act). Schedule 2 of the CC Act defines investigation as ‘examine and consider’.
Prescribed crime body or another agency
The CCC exempt information provision refers to prescribed crime bodies and to other agencies. Section 46 of the CC Act allows the CCC to refer matters to the agency to investigate, subject to CCC's monitoring role.8 In these circumstances information obtained, used or prepared for the investigation by the agency will be subject to the CCC exempt information provision, as the agency has taken on the role of investigator.
In G8KPL2 and Department of Health9 the applicant applied for a Report prepared by the Department’s Ethical Standards Unit (ESU) following the applicant’s complaint about the conduct of hospital staff. The Department refused access to this document under schedule 3, section 10(4) and the applicant applied for external review.
OIC found the Department had notified the then CMC of the complaint and that it had been referred back to the Department, subject to the then CMC’s monitoring role; the Department's ESU investigated the allegations, prepared the Report and notified the then CMC of the investigation outcome.
On external review the Right to Information Commissioner decided the Report was prepared for an investigation by another agency in the performance of the prescribed functions of the prescribed crime body and was therefore exempt under schedule 3, section 10(4).
In performance of its prescribed functions
The prescribed functions of the CCC are defined in schedule 3, section 10(9) of the RTI Act as its crime, intelligence and corruption (this includes police misconduct) functions. Chapter 2 of the CC Act specifies the content of each of these functions.
Exception to the CCC exempt information provision
The only exception to the CCC exempt information provision is where the investigation has been finalised and the information applied for is about the applicant10. Generally, information will be ‘about’ the applicant where they are the subject of the relevant investigation.
In G8KPL2 and Department of Health11 the applicant contended that the report in issue was about him as he was the complainant. However, the Right to Information Commissioner decided that, while the Report came into existence as a result of the applicant’s complaint, the Report was not about the applicant.12
The former Crime and Misconduct Commission
In addition to renaming the CMC to CCC, the CMOLA Act also amended the prescribed functions of the prescribed crime body. Official misconduct, which was a function of the CMC, has been replaced with the corruption function, which is more narrowly defined but still includes corrupt conduct and police misconduct.
Historical information that was obtained, used or prepared for an investigation by the CMC or an agency action on referral from the CMC can be exempt from disclosure under schedule 3, section 10(4) of the RTI Act. The exemption can apply to information obtained, used or prepared for an investigation into complaints about police misconduct because such investigations are within the scope of the CCC’s corruption function. Matters involving official misconduct are also likely to come within the CCC’s corruption function as per the definition of corrupt conduct in section 15 of the CC Act.
Impact on applications received before 1 July 2014
The amendments to the RTI Act commenced on 1 July 201413. From that date, the amendments apply to all current applications being processed by agencies which involve investigations by the former CMC, or by the agency on behalf of the former CMC.
Decision makers should consult their agency’s CCC Liaison Officer to determine whether the amendments have any impact on the nature of the conduct being investigated.
- 1 Chapter 3 of the Information Privacy Act 2009 (Qld) also gives a right of access, but it is limited to documents containing the applicant’s personal information.
- 2 In this Guideline references to an ‘agency’ include Ministers, unless otherwise specified.
- 3 Section 48(3) of the RTI Act.
- 4 It also includes the former Criminal Justice Commission and the former Queensland Crime Commission.
- 5 Due to amendments introduced by the Crime and Misconduct and Other Legislation Amendment Act 2014 (CMOLA Act).
- 6 (2006) 7 QAR 77 .
- 7 Springborg [55-59], referring to the Crime and Misconduct Act 2001 as it was previously called.
- 8 In some cases, the agency will need to provide the CCC with a detailed report on the outcome. For more information refer to the CCC's 'Procedures for dealing with complaints about corruption'.
- 9 (Unreported, Queensland Information Commissioner, 31 January 2011).
- 10 See schedule 3, section 10(6) of the RTI Act.
- 11 (Unreported, Queensland Information Commissioner, 31 January 2011) [29 and 30].
- 12 . This approach has since been affirmed by the Information Commissioner in Cameron and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 August 2012); Darlington and Queensland Police Service  QICmr 14 (11 April 2014) and Dickinson and Queensland Police Service  QICmr 30 (20 June 2014).
- 13 This is the date the relevant provisions of the CMOLA Act commenced.
Current as at: March 13, 2019