Protocols for reporting to Ministers and Senior Executives on Right to Information and Information Privacy applications

The Right to Information Act 2009 (Qld) (RTI Act) and Information Privacy Act 2009 (Qld) (IP Act) give people the right to access and amend documents of Queensland government departments, subject to the limitations in those Acts.

Status

This guideline constitutes a performance standard issued by the Information Commissioner under section 131 of the RTI Act, which supplements the Protocols for communication between ministerial staff members and public service employees.

Purpose

The purpose of this performance standard is to set protocols for measuring and maintaining the independence of RTI and IP decision making during briefings of Ministers, ministerial staff, and senior executives.

Application

This performance standard applies to:

• Departments of government declared under section 197 of the Public Sector Act 2022 (Qld).
• Ministers and ministerial staff members.

Context and principles

The Queensland Government operates in accordance with the Westminster system of responsible government. Governments are responsible collectively to the community through the electoral process and are supported by an independent public service. Ministers are responsible individually to Parliament for the administration of their portfolios.

Directors-General are responsible for the delivery of their departments’ services and are accountable ultimately to the Premier, although they report to their responsible Minister on a day-to-day basis. Departments are responsible for giving independent and apolitical advice to assist the government and the Minister with decision making.

The RTI and IP Acts are transparency and accountability mechanisms. Directors-General are responsible for making decisions on access and amendment applications made to their Department. In practice, Directors-General usually delegate RTI and IP decision making powers to departmental officers. Even when powers are delegated, Directors-General will need to be kept informed of significant decisions.

Ministers are entitled to be briefed on access applications¹ made to the Department under the RTI or IP Acts insofar as they are relevant to the Minister’s responsibilities. The privacy obligations in the IP Act concerning storage, use, and disclosure of such information apply to the Minister, to the extent that it constitutes personal information.

Under the RTI and IP Acts, it is an offence to direct a person to make a decision the person believes is not the decision that should be made.² It is also an offence to direct an employee or officer of the agency or Minister to act in a way contrary to the legislative requirements.³

The RTI and IP Acts expressly set out how access and amendment applications are to be processed and the grounds on which decisions to give or refuse access or amendment must be based.⁴ The RTI Act explicitly states that decision makers are required not to take account of factors such as possible embarrassment to the Government or loss of confidence in the Government.⁵

Protocols

Ministers and Directors-General are encouraged to establish reporting processes for being informed about RTI and IP access applications. If reporting processes are established, the scope and purpose should be confirmed in a written policy.

Where reporting processes require particular types of applications to be reported on, the criteria for identifying applications should be clearly defined. Generally, reporting would be limited to applications where giving access to information will require the Minister or Department to prepare for public debate.

The written policy and any related correspondence should make it clear that the reports are for information only and note the offences relating to giving direction in the RTI and IP Acts. Delegated decision makers  should be reporting to the Director-General. The Director-General should determine further recipients of the reports on a need-to-know basis consistent with obligations under the IP Act.⁶

The content of  reporting should be limited to procedural matters such as statutory timeframes, the scope of the application, and a summary of the factors favouring disclosure or non-disclosure of the information in the public interest. Inspection of documents containing sensitive information, such as personal health information, should be limited, especially where they are not considered by the decision maker as suitable for release to the applicant.

If further background briefing is required on the operational issues subject to the access application, the Minister or Director-General should request a separate briefing on these matters from the responsible operational area through the usual internal and Ministerial briefing systems.

In circumstances where the Director-General disagrees with a proposed decision, the Director-General should make the decision. In the interests of open discussions of public affairs, the Director-General should consider exercising the discretion to release information even where the information could lawfully be withheld.⁷

If a Department has a policy on RTI and IP reporting processes, the policy must be made available under section 20 of the RTI Act. In the interests of transparency, the policy should be published on the Department’s website.

RTI and IP reports should be managed separately from information retrieval processes and liaison between RTI and IP units and operational custodians of information. Requests for information from operational areas should include:

• guidance on the pro-disclosure bias, relevant and irrelevant considerations and exemptions;
• an invitation to provide additional contextual information to ensure accurate interpretation;
• a prompt to consider providing access to the information administratively; and
• a clear statement about the offences relating to directions in the RTI and IP Acts.

Processes for RTI and IP reports must be managed in a manner which does not impact on statutory timeframes. RTI and IP reporting is not a sound basis on which to ask an applicant for further time to consider an application and make a decision about access.

Recordkeeping

Proper records of RTI and IP reports and any related correspondence or discussion must be made and kept in accordance with the Public Records Act 2023 (Qld).

Support to public service employees and ministerial staff members

Directors-General should provide ongoing support to staff (including reinforcing among senior executive their responsibility to provide support to their staff) to create a culture of openness and respect for the independence of RTI and IP decision makers.

Public service employees should initially discuss any perceived breach of these protocols with their Senior Officer or Director-General. The Director-General should, if necessary, raise significant concerns with the Minister.

Ministerial staff members should initially discuss any perceived breach of these protocols with their Principal Adviser. The Principal Adviser should refer significant concerns where necessary to the Director-General.

If a public service employee or ministerial staff member is unable to raise their concerns within the relevant line of management, or is not satisfied with the response, the employee or staff member can raise the issue with another senior manager or seek advice on other internal or external integrity processes.

Assistance

The Office of the Information Commissioner’s (OIC) Enquiries Service provides assistance with the operation and application of the RTI Act and IP Act and can be contacted on 07 3234 7373 or email enquiries@oic.qld.gov.au.  A suite of guidelines on the RTI Act and IP Act are available on the OIC website at www.oic.qld.gov.au.