Information disclosure of which is prohibited by Act

Under the Right to Information Act 20091(RTI Act) information is exempt from release if its disclosure is prohibited by the specific Acts2 listed in schedule 3, section 12 of the RTI Act.3.For additional information, please refer to ‘Schedule 3, section 12 RTI Act’ in the Annotated legislation.

Acts that prohibit disclosure of information

The RTI Act generally overrides the provisions of other Acts that prevent the disclosure of information.4 However, if the Act is listed in schedule 3, section 12 the information will be exempt from release, unless it is the applicant’s personal information.5

If the Act that prohibits disclosure of information is not listed in section 12, the information will not be exempt, but it may be contrary to the public interest to release, as disclosure of information being prohibited by an Act is a public interest factor against disclosure.6 The decision maker will have to consider whether the information is exempt under another exempt information provision or, if not, whether it is contrary to the public interest to disclose, taking into account that the disclosure of information is prohibited by an Act.

Example

Jill, who lives in Brisbane, submitted an RTI access application to the Department of Trees for documents relating to poisonous trees in George Town. Section 222 of the George Town Act 2011 prohibits the disclosure of information relating to poisonous trees to anyone who is not a resident of George Town.

While section 222 prohibits disclosure of information, it is not listed under schedule 3, section 12 of the RTI Act so the information is not exempt from release under that provision.

The decision maker will have to consider whether the information is exempt under another exempt information provision or, if not, whether it is contrary to the public interest to disclose, taking into account that the disclosure of information is prohibited by an Act.

Schedule 3, Section 12

The Acts and the specific provisions listed in schedule 3, section 12 of the RTI Act are described briefly below.

Aboriginal Cultural Heritage Act 2003 (Qld), section 29(2)

Section 29(2) of the Aboriginal Cultural Heritage Act 2003 prohibits a person from disclosing knowledge or information given to or otherwise acquired by the person in a report or other document if:

  • the person knows the knowledge or information is of a secret or sacred nature;7 and
  • the Aboriginal people in whose understanding the knowledge or information is secret or sacred have not agreed to its inclusion in the report or other document.
  • Adoption Act 2009 (Qld), section 314

Section 314 of the Adoption Act 2009 precludes public service employees and other people performing functions under the Adoption Act 2009 from disclosing protected information8. Exceptions9 to this prohibition include circumstances where the disclosure of protected information is required or permitted under the Adoption Act 2009 or where it is necessary to perform the person’s functions under the Act.10

Auditor-General Act 2009 (Qld), section 53

The Auditor‑General is responsible for audits of public sector agencies including departments, statutory bodies, government owned corporations, and local governments. Section 53 of the Auditor General Act 2009 prohibits disclosure of information disclosed to or obtained by specific people in relation to an audit conducted under that Act where the information is not publicly available, except where specific exemptions apply.

Australian Crime Commission (Queensland) Act 2003 (Qld), sections 19 and 20

Sections 19 and 20 of the Australian Crime Commission (Queensland) Act 2003 allow an examiner to issue a summons or notice to appear before an examiner and to produce documents.  Section 21(1) of that Act provides that an examiner issuing a summons or notice under sections 19 or 20 must, or may, include in it a notation to the effect that disclosure of information about the summons or notice is prohibited except in the circumstances, if any, specified in the notation.

Child Protection Act 1999 (Qld), sections 186 to 188

Sections 186, 187 and 188 of the Child Protection Act 1999 (CP Act) prohibit the disclosure of information:

  • that would identify a person who has notified the government agency, an authorised officer or a police officer that a child11 has been, is being or is likely to be harmed
  • about another person’s affairs that has been obtained by a person who is or has been a public service employee or other specified person performing functions in relation to the administration of the CP Act
  • that has been provided by a person about another person’s affairs in performing functions in relation to the administration of the CP Act to another person.

Exceptions apply in certain cases to the prohibitions in sections 186, 18712and 188 of the CP Act.

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), sections 51C and 70

Part 3A of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 allows the police commissioner to apply for a prohibition order. Under section 51C, a person who obtains protected information because of their involvement in the administration of part 3A must not disclose the information to anyone else.

The child protection register records certain information about offenders. Section 70 prohibits people who have access to the child protection register from disclosing personal information contained on the register unless certain exceptions apply.

Financial Intermediaries Act 1996 (Qld), section 239

Section 239(2) of the Financial Intermediaries Act 1996 prohibits a person who is, or was at any time, involved in the administration of the Act to make a record of or disclose information about a person which has been obtained in the course of duties performed under that Act.

G20 (Safety and Security) Act 2013 (Qld), section 85

Section 85 of the G20 (Safety and Security) Act 2013 prohibits   a person that has knowledge of restricted information (because of their employment), from disclosing restricted information without lawful authority. Restricted information includes information relating to all or any part of the G20 meeting, such as information relating to planning or deployment for the meeting or part information the disclosure of which could prejudice the security of buildings or vehicles and more.13

Youth Justice Act 1992 (Qld), section 288

Section 288 of the Youth Justice Act 1992 prohibits the disclosure of confidential information, including identifying information, about a child being dealt with under that Act. Information may only be recorded, used or disclosed for an authorised purpose listed under section 289 of the Youth Justice Act 1992.

Maintenance Act 1965 (Qld), section 129

Section 129 of the Maintenance Act 1965 prohibits the publication of any account or report of hearings of a complaint in relation to orders made in relation to a child whose parents were not married to each other at the time of conception.

Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld), section 80(2) and 82(2)

Section 80(2) of the Mineral and Energy Resources (Financial Provisioning) Act 2018 (MER Act) prohibits the disclosure of confidential information except as provided for in part 5 of the MER Act. Section 82(2) prohibits the disclosure of specific confidential information, namely that which has been acquired from the scheme manager under section 82(1).

Public Interest Disclosure Act 2010 (Qld), section 65(1)

Section 65(1) of the Public Interest Disclosure Act 2010 prohibits the disclosure of confidential information gained in the administration of that Act unless an exception in section 65(3) of the Public Interest Disclosure Act 2010 applies.

Confidential information includes (but is not limited to) information about the identity, occupation, residential or work address or whereabouts of a person who makes a public interest disclosure14, or against whom a public interest disclosure has been made15.

Taxation Administration Act 2001 (Qld), part 8

Information is exempt information if its disclosure is prohibited by part 8 of the Taxation Administration Act 2001 so far as it applies to personal confidential information under that Act. Part 8 of the Taxation Administration Act 2001 deals with confidentiality and includes three sections. Section 111 provides that an official must not disclose confidential information acquired in their capacity as an official, unless exceptions under section 111(2) of the Taxation Administration Act 2001 apply. Section 112 provides that if a person knowingly acquires confidential information without lawful authority or receives information that they know, or should know, is confidential, they must not disclose the information to anyone one unless the Act allows them to.

Section 113 allows certain people to refuse to disclose specific information in court or Queensland Civil and Administrative Tribunal proceedings.

Torres Strait Islander Cultural Heritage Act 2003 (Qld), section 29(2)

Section 29(2) of the Torres Strait Islander Cultural Heritage Act 2003 prohibits a person from disclosing knowledge or information given to or otherwise acquired by the person in a report or other document if:

  • the person knows the knowledge or information is of a secret or sacred nature;16and
  • the Torres Strait Islanders in whose understanding the knowledge or information is secret or sacred have not agreed to its inclusion in the report or other document.

Witness Protection Act 2000 (Qld), sections 36, 37 and 38

Section 36 of the Witness Protection Act 2000 makes it an offence to disclose information about a ‘relevant person’17 or the witness protection program that may threaten the security of that person or the integrity of the program or other witness protection activities. There are some exceptions to this prohibition on disclosure18.

Section 37 of the Witness Protection Act 2000 prohibits the disclosure or communication of information about persons involved in protection arrangements, as well as any details of the arrangement, subject to the exceptions in section 37(2).

Section 38 of the Witness Protection Act 2000 applies to a relevant person (such as a member of the commission, including the chairperson, officer of the commission, registrar-general and more)19. It provides that a relevant person cannot be required to produce a document or to disclose anything related to the performance of duties or the protection of persons under this Act unless one of the exceptions apply.20

Repealed legislation – The Transport (Rail Safety Act) 2010 Qld), part 9, division 2

Under section 12(1A), information is exempt information if its disclosure was prohibited by the repealed Transport (Rail Safety) Act 2010, part 9, division 2, as in force at any time before its repeal. Part 9, division 2 prohibited the recording and disclosure of restricted information except in certain circumstances.  Restricted information included:

  • statements obtained and information recorded in the course of investigations and inquiries
  • medical information regarding persons involved in an incident that was the subject of an investigation or inquiry.

Exception for personal information

Schedule 3, section 12(2) provides that information is not exempt information under subsection (1) if it is personal information of the applicant.

The exception only applies to information that comprises the applicant’s personal information.21 The exception does not apply if the information is the applicant’s personal information and is also the personal information of another person.22

This exception does not apply to corporations as only individuals can have personal information for the purpose of the RTI Act.23

  • 1 And the Information Privacy Act 2009.
  • 2 Schedule 3, section 12 of the RTI Act.
  • 3 Section 67(1) of the Information Privacy Act 2009 (Qld) provides that grounds for refusal apply in the same way and to the same extent as under section 47 of the RTI Act.
  • 4 Section 6 of the RTI Act.
  • 5 Schedule 3, section 12(2).
  • 6 Schedule 4, part 3, item 22.
  • 7 The words secret and sacred are defined in schedule 2 of the Aboriginal Cultural Heritage Act 2003 (Qld) as meaning secret or sacred according to Aboriginal tradition.
  • 8 Protected information is defined in section 314(10) of the Adoption Act 2009 (Qld) as information about a person’s personal history or the person’s affairs.
  • 9 See section 314 of the Adoption Act 2009 (Qld).
  • 10 7CLV4M v Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011).
  • 11 Or an unborn child that may be at risk of harm after they are born.
  • 12 See Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012).
  • 13 See section 85(2) of the G20 (Safety and Security) Act 2013 (Qld) for the full definition of restricted information.
  • 14 Public interest disclosures are listed in sections 12-13 of the Public Interest Disclosure Act 2010 (Qld).
  • 15 For further information that is ‘confidential’ see section 65(7) of the Public Interest Disclosure Act 2010 (Qld).
  • 16 The words secret and sacred are defined in the Schedule to the Torres Strait Islander Cultural Heritage Act 2003 (Qld) as meaning secret or sacred according to Island custom.
  • 17 ‘Relevant person’ is defined in section 36(3) of the Witness Protection Act 2000 (Qld).
  • 18 See section 36(2) of the Witness Protection Act 2000 (Qld).
  • 19 For the complete list of ‘relevant person’ see section 38(1) of the Witness Protection Act 2000 (Qld).
  • 20 For more information about the exceptions see section 38(2) of the Witness Protection Act 2000 (Qld).
  • 21 See also U04ENJ and Queensland Health (Unreported, Queensland Information Commissioner, 9 March 2012) at paragraphs 25-27.
  • 22 7CLV4M v Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at paragraph 25. See also SYT and Department of Health (Unreported, Queensland Information Commissioner, 15 March 2010) at paragraph 33.
  • 23 Fendley Consultancy Pty Ltd and Queensland Treasury and Trade (Unreported, Queensland Information Commissioner, 26 April 2013), see also Lis-Con Concrete Constructions Pty Ltd and Queensland Treasury and Trade (Unreported, Queensland Information Commissioner, 13 November 2012).

Current as at: May 14, 2019