Access to information under the Right to Information Act 2009 (RTI Act) can be refused if, on balance, its release would be contrary to the public interest. This guideline explains how to apply the public interest balancing test set out in the RTI Act. Decision makers should also consult the Annotated Legislation for more information on the public interest factors.
Consideration of each factor involves a two step process:
An applicant or third party is not required to identify specific public interest considerations. However, they may provide information which raises public interest factors that you can consider.
Any irrelevant factors raised by the information or application must be identified and disregarded.
A reasonable expectation that disclosing the information could—
—are irrelevant considerations, as is the seniority of the individual who created the document.
Schedule 4, part 2 of the RTI Act lists factors favouring disclosure which, in broad terms, deal with the following public interest considerations:
All relevant factors favouring disclosure must be identified. In doing so, it is important to carefully consider the wording of each factor.
For a factor to apply, there must be more than a coincidental connection between the information and the factor. It is also important to identify which characteristic or part of the information, in the context of the application, raises the factor and to address any threshold requirements within the factor to determine whether it applies to the particular information. For example, it may be necessary to:
Explaining why and how the factor applies, will assist the applicant to understand what you have taken into account in making your decision.
Schedule 4, part 3 of the RTI Act lists factors favouring nondisclosure which, in broad terms, deal with the following public interest considerations:
The factors in schedule 4, part 4 of the RTI Act favour non-disclosure because of an identified public interest harm in disclosure.9 These factors relate to:
After identifying any factors favouring non-disclosure which may be relevant, carefully consider the wording of each factor.
As with factors favouring disclosure, it is important to identify which parts of the information, in the context of the application, raise the factor and to address any threshold requirements within the factor to determine whether the factors applies.10
All relevant factors favouring non-disclosure must be identified. For part 3 factors, it is necessary to consider whether disclosure will cause a public interest harm; for part 4 factors, the RTI Act expressly provides that disclosure will cause a public interest harm. However, the significance or extent of the harm that could reasonably be expected to flow from disclosure must be determined in the factual circumstances of the application.
As with disclosure factors, explaining why and how the factor applies will assist the applicant to understand what you have taken into account in making your decision.
Once all relevant factors favouring disclosure and non-disclosure have been identified, you must balance the public interest considerations to determine whether releasing the information would be contrary to the public interest. This is done by considering the relative importance of applicable public interest factors for and against disclosure, taking into account the extent of any public interest harm flowing from Part 4 Factors. This assessment must be informed by the particular circumstances of the application and be based on careful consideration of the information sought.
The object of this balancing is to:
The degree of importance or weight given to a relevant public interest factor will depend on the effect that disclosing the information would have on the public interest consideration addressed by the factor. If the relevant public interest factor is a Part 4 Factor, the anticipated harm is specified, however, the seriousness of that effect may help you to identify how significant the public interest harm will be (ie how serious an effect that disclosure of the information being considered will have on the public interest).
The following considerations may also affect how important a public interest factor is in the context of an application:
Some public interest factors, both for and against disclosure, cover similar public interest consideration. Where factors relevant to an application overlap it means that the factual circumstances of an application raise a common public interest consideration. Identify the common public interest consideration and give the factors that relate to it their necessary degree of importance in the context of the application as a whole.
If relevant factors favouring disclosure or relevant factors favouring non-disclosure15 address a common public interest consideration:
Having reached a conclusion on where the balance of the public interest lies, a decision maker is required to provide written reasons for their decision.
If access is refused to some or all of the information, a clear and succinct explanation of—
—will assist the applicant to understand the basis for the decision.
OIC’s website contains a significant number of resources which illustrate and explain further the application of the public interest test including Information Commissioner decisions and annotated legislation (section 47(3)(b)).
Current as at: March 17, 2015