Under the Right to Information Act 20091 (Qld) (RTI Act), people have the right to apply for documents held by Queensland government agencies2. This right is subject to limitations, including where information would be exempt or contrary to the public interest to release.
Under schedule 3, section 8 of the RTI Act access can be refused to information that would found an action for breach of confidence if it was disclosed. This does not apply to deliberative process information.
This guideline explains the requirements of establishing deliberative process information. For guidance on applying the breach of confidence exempt information provision decision makers should refer to Breach of Confidence.
In addition to explaining how to establish deliberative process information, this guideline also explains the application of the two public interest factors against disclosure that relate to deliberative process.
These are :
The deliberative process harm factor arises where disclosure of deliberative process information could reasonably be expected to cause a public interest harm.4
There are a number of exceptions to the deliberative process harm factor.
For the deliberative process prejudice factor5 to apply, there must be a reasonable expectation of prejudice occurring to the actual deliberative process from disclosure of the information.
The RTI Act defines deliberative process information as:
in the course of, or for the purposes of, the deliberative processes involved in the functions of government.6
There are effectively two things that must be established when considering deliberative process under the RTI Act:
The deliberative process status of information is not lost simply because an agency completes its deliberations.
However, the fact that a process has been finalised can have a significant impact on whether it will be contrary to the public interest to disclose the information. This is discussed below.
Deliberative process is, at its most basic, the thinking processes8 of an agency. It is "the process of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action".9
When an agency thinks, or deliberates, about something it will generally make judgements, evaluate evidence, weigh up different options, or consider competing arguments as part of making a decision.
The RTI Act refers specifically to 'opinions, advice or recommendations' and to 'consultation and deliberation'. These terms are not defined in the Act, but an opinion, advice, or recommendation is more than plain data, facts, or statistics.10 Generally, these would involve a judgement, view, attitude, or estimation, or present one or more options as advisable or expedient.
Consultation will generally involve a request or invitation by the agency to a third party to provide input. Deliberation may involve formal consultations or discussion, or careful considerations before a decision.
While the RTI Act refers specifically to ‘opinion, advice and recommendation’ and to ‘consultation and deliberation’, these are not defined document classes. A document titled 'Recommendation' does not automatically contain deliberative process information, and a deliberative process document is not rendered otherwise because it is titled 'Memo'.
The decision maker must assess the contents of the document, along with the processes and functions it relates to and any other relevant circumstances, to decide its deliberative process status.
For example, in Straker and Sunshine Coast,11 the Commissioner accepted that material was a consultation but was not satisfied that the consultation involved a deliberative process, because it involved the company keeping Council informed of its intentions, setting terms in relation to the flow of information, and explaining processes and the company's process of community engagement. It did not relate to any current ‘thinking processes’ of Council.
Other documents recognised as deliberative process documents include:
As noted above, to be deliberative process information under the RTI Act it must involve the functions of government.12 This will generally be the functions of the agency that holds the document.
For departments and Ministers, their functions can be found in the Administrative Arrangements Orders. For other agencies, their operative legislation, for example, the Local Government Act for Councils, or the instrument or Act that established the agency, can serve as a guide to their functions.
Deliberative process can cover any 'thinking processes' related to the performance of the agency’s functions, including contributions to the formulation of policy and making decisions under the agency's statutory powers.
The administrative processes of an agency, however, are not part of its deliberative processes. For example, paying accounts, processing forms, publishing information and carrying out inspections do not form part of the deliberative processes of government.13
An agency's deliberative processes will usually occur towards the end of a larger, overall process—after an agency has conducted necessary investigations, established facts, acquired input from relevant sources, obtained expert opinion or analyses, and carried out any required consultations.
This is because, logically, the thinking processes of an agency can only occur once the agency has acquired something to think about.
Information provided by third parties outside government can be deliberative process information, as long as it relates to a deliberative process involved in the functions of government.14
For example, in North Queensland Conservation Council Inc and Queensland Treasury,15 the deliberative process information was based on information confidentially communicated to the agency by a third party outside government.
The following are examples of deliberative processes, or deliberative process information, taken from Office of the Information Commissioner decisions.16 Note that in many of these decisions access was not refused, as it was not contrary to the public interest to release:
Once a decision maker has identified deliberative process information, they need to determine if the harm and/or prejudice public interest factors apply.
Deliberative process information remains deliberative process information even when the government's thinking processes are finalised.
However, where the deliberative process is finished and there are no outstanding government decisions to be made, the Commissioner has found that the deliberative process prejudice factor does not apply.25
The Commissioner has also found that, when applying the harm factor, there can be a significant reduction of any public interest harm that could result from the information's disclosure, and often afforded it low weight.26
The above does not apply if the process is only partially finished.
Even if some deliberations have been completed, if the deliberations in the information remain ongoing, if the government is still engaged in internal deliberations and consultation, and/or if it has not yet reached its final position, the prejudice factor will continue to apply and the harm factor will not be reduced.27
The deliberative process harm factor states that a public interest harm is caused if deliberative process information is disclosed. Decision makers will need to weigh up the information and the circumstances to decide the nature and extent of the public interest harm that could result from the disclosure.
The harm factor also contains exceptions, ie information that is excluded from the harm factor. Before applying the harm factor, decision makers should check to see if the information falls within an exception. If so, the harm factor does not apply to it.
However, information that falls within these exceptions is still deliberative process information and decision makers will need to consider whether the prejudice factor applies.28
The harm factor will not apply to deliberative process information that appears in an agency's policy documents.
Deliberative process information that consists of factual and/or statistical material is excluded from the harm factor.
For example, in Barling and Brisbane City Council,29 the Commissioner decided that calculations as to the amount of estimated backpay owed to the applicant were a deliberative process, but because they were purely factual, the harm factor did not apply.
Expert opinion or analysis30 is excluded from the harm factor unless it was:
For example, in Beilby and Brisbane City Council31, the documents included an expert opinion/analysis from a recognised expert in the relevant field. However, as the Council had commissioned it for the purposes of its deliberative processes relating to flood mitigation, the Commissioner found that the harm factor applied.
Any report prepared by a body or organisation that is established within the agency and is prescribed under a regulation is excluded from the harm factor.
If there's been a power, an adjudicative or a statutory function, or the administration of a publicly funded scheme exercised to give a:
then the record of the final decision, order, or ruling that forms the formal statement of reasons is excluded from the harm factor.
For the deliberative process prejudice factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. This is harm to the actual process itself.
When considering whether this factor applies, decision makers should first determine:
If it has concluded and there is no decision left to be made, the factor will not apply32 (see above for discussion of this point).
If the process is not finalised, decision makers will need to consider the information, what it reveals about the relevant deliberative process, and what potential prejudice could be caused to that process if it was disclosed.
The fact that a relevant process is ongoing, does not, of itself, permit a conclusion that disclosure would, on balance, be contrary to the public interest.33 For example, in Barling and Brisbane City Council,34 the deliberative process (calculations and determination of applicable pay rates) was ongoing, but any potential prejudice to it was outweighed by other public interest factors.
The Commissioner has recognised that prejudice can be caused to a deliberative process where releasing a document would:
It would be rare, however, for any anticipated disruption (particularly given the requirement to disregard any potential mischievous conduct by the applicant36) to rise to a level that would amount to an injury to the public interest.37
If the decision maker concludes that disclosure of the information could not reasonably be expected to prejudice the deliberative process, the prejudice factor will not apply.
The deliberative process prejudice and harm factors are just two public interest factors among the many a decision maker must consider. There will, in almost all cases, also be numerous factors favouring disclosure.
The nature of deliberative process information is such that it attracts strong accountability and transparency factors favouring disclosure, and these factors must be balanced against the factors favouring nondisclosure.
These factors favouring disclosure are likely to include that disclosure:
Current as at: September 17, 2019