Queensland Ministers have obligations under the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act). Generally, these obligations would be fulfilled by Ministerial staff or appropriately authorised departmental officers.
Under the RTI Act and the IP Act a person has a right to apply to access a document of a Minister, subject to some exceptions. Ministers and their staff must also comply with the privacy principles in the IP Act when dealing with personal information.
The term ‘document’ captures a broad range of information formats, including hard copy and electronic files, handwritten notes, text messages and post-it notes on files. Ministers, along with their staff and consultants, receive and deal with numerous documents, not all of which will be documents of a Minister for the purposes of the RTI and the IP Act.
When do the Acts apply?
Only documents of a Minister attract the obligations around access and privacy set out in the RTI Act and theIP Act.
‘Documents of a Minister’ are documents about an agency's affairs and they must be in the Minister's (or their staff or consultant's) physical possession, legal control, or be documents the Minister is entitled to access. This includes communications and documents stored or transmitted on personally owned devices or held in personal email accounts.
Documents relating to electoral or party affairs, for example emails between political party members relating solely to party matters, personal affairs, such as diary entries relating to family commitments, or the Minister's role solely as a Member of Parliament are not documents of a Minister.
The RTI Act requires decision makers to have a pro-disclosure bias when deciding whether or not to release documents under the RTI Act. Possible embarrassment to the government or mischievous conduct by an applicant cannot be taken into account.
Access to documents can be refused if they contain exempt information, or, on balance, their release would be contrary to the public interest. Exempt information is information that Parliament has already decided should not be released and includes, for example, information subject to Cabinet confidentiality and legal professional privilege.
Formal access applications made under the RTI Act for documents of a Minister will require searches to be conducted for both physical and electronic documents, including searches of personally owned devices and/or personal email accounts if it is possible that they may contain documents within the scope of the application.
It is important to strike a balance between independent decision making about access to government information and the need for Ministers to be prepared for matters of public debate. The Office of the Information Commissioner briefing protocol provides guidance in managing an appropriate exchange of information about RTI requests whilst maintaining the independence of RTI decision-makers and protecting the privacy of individuals.
Ministers and their staff must comply with the Privacy Principles in the IP Act when collecting, storing, using and disclosing personal information. Personal information is any information about an individual who can be identified. The obligations placed on Ministers and their staff include appropriately securing personal information to protect against loss or unauthorised access. These obligations extend to personal information contained in Ministerial documents stored on personal devices or in personal email accounts.
Corruption and transparency risks - unofficial devices and email accounts
Use of official devices and email accounts supports stronger transparency and helps prevent corruption. Poor recordkeeping and use of unofficial devices and email accounts can result in lost records, inappropriate access to documents and personal information and inadequate recording of decisions. This means it may be difficult to meet RTI and IP Act obligations. Information received in an unofficial email account for example, could be forwarded to the official Ministerial email account and handled from that account to ensure appropriate accountability and privacy safeguards.
- RTI and Privacy Obligations of Ministerial Staff
- Model Protocols for Queensland Government Departments on Reporting to Ministers and Senior Executives on RTI and IP applications
- Top Ten Privacy Myths - Busted!
- RTI myths - busted
- CCC advisory – Management of public records: advice for all employees of a public authority
Current as at: November 27, 2017