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.3
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)4.
This exemption is referred to as 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 applicant.5 Generally, information will be ‘about’ the applicant where they are the subject of the relevant investigation.
In G8KPL2 and Department of Health6 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.7
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 Commission8 (Springborg) the Information Commissioner said that ‘prepared’ in the equivalent section of the now repealed Freedom of Information Act 1992 means ‘compose and write out, draw up (a text or document)...produce or form...manufacture, make’ as set out in the New Shorter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 20019 (CC Act). Schedule 2 of the CC Act defines investigation as ‘examine and consider’.
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.10 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 Health11 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).
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.
The CCC used to be the Crime and Misconduct Commission (CMC), which had a function of investigating official misconduct. It was replaced with the CCC’s corruption function, which is more narrowly defined but includes both corrupt conduct and police misconduct.12
Current as at: October 2, 2020