RTI and privacy obligations of ministerial staff

Queensland Ministers have obligations under the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act).  These obligations will generally be met by Ministerial staff or by appropriately authorised departmental officers.

Informal access to government information

The RTI Act provides that government information should be released informally wherever possible because formal access under the RTI Act is intended as a last resort.  Informal release will generally not be possible where the information is, for example, private, confidential, legally privileged or subject to Cabinet confidentiality.  Where the nature of the information makes it unsuitable for informal release, the requester will need to make a formal RTI application to access the documents.

Documents of a Minister

People can apply under the RTI Act¹ to access a document of a Minister, which is a document that relates to the affairs of an agency and is either in the Minister’s physical possession or legal control or is one the Minister is entitled to access.  This includes documents in the possession of Ministerial staff or consultants and communications or documents stored or transmitted on personally owned devices.  The RTI Act does not apply to documents relating to a Minister’s electorate business or their role as a Member of Parliament.

RTI applications

The RTI Act gives Ministers the power to make decisions on RTI applications made to them; alternatively the Minister may direct another person to make the decision.² Access can be refused to exempt information or information it would be contrary to the public interest to release.  Possible embarrassment to the government or mischievous conduct by the applicant cannot be taken into account when deciding whether or not to release documents under the RTI Act.

Dealing with RTI applications

The Minister may direct Ministerial staff members to make decisions under the RTI Act. RTI decision makers are required to be independent and to have a pro-disclosure bias; it is an offence to attempt to influence a decision maker. Information can only be withheld if it is not in the public interest to release it, for example because it is exempt³ or contrary to the public interest information⁴.

All documents of the Minister within the scope of the application must be located and considered, and there are time limits in which a decision must be made. Searches for documents must be made in all possible locations including electronic storage.  There are specific requirements that must be met when delivering a decision on an access application, including providing reasons and informing the applicant of their review rights.

The RTI Act and departmental information

Ministerial staff authorised to process access applications made to the Minister can, when dealing with an access application, ask the department for documents the Minister is entitled to access.  Ministerial staff do not have a general power to direct public service officers, for example telling them how to deal with departmental access applications, and care should be taken not to ask a public service employee to act inconsistently with their legal and ethical duties.

Briefing Ministers on RTI and IP applications

People have a right to expect that any decision made about their access to government information will be independent and free from political interference.  At the same time, because Ministers and Directors-General are accountable for their Department’s performance they need to be aware of and prepared for matters of public debate.   For some applications, it can be important for Ministerial offices to provide contextual information about requested documents to ensure the decision-maker can take into account all relevant matters relating to disclosure.  OIC has developed a protocol that guides and assists departments and Ministerial offices to manage the exchange of appropriate information about RTI requests whilst maintaining the independence of RTI decision-makers and protecting the privacy of individuals.⁵

Personal information and the privacy principles

Departments, Ministers and their staff  are required to comply with the privacy principles in the IP Act when dealing with personal information. Personal information is any information about an individual  who can be identified. A department does not breach the privacy principles when it gives personal information to a Minister as part of the Minister’s official functions in relation to the department.⁶ The privacy principles are summarised below.

• Information Privacy Principles (IPPs) 1-3 apply when collecting personal information. They state that only relevant information is to be collected and it is to be collected lawfully and fairly and in a way that does not intrude unreasonably on the individual’s private life. Individuals must be told why and under what authority their personal information is being collected and to whom the information may be disclosed.
• IPP 4 requires that personal information is stored securely based on its sensitivity, and IPP 5 that the Minister makes people aware of the sorts of personal information held, the purpose for which it is held and how it can be accessed.
• IPP 6 and 7 allow people to access and amend their personal information, and IPPs 8-9 require the Minister to ensure personal information is accurate and that only relevant personal information is used.
• IPP 10 and 11 regulate the use and disclosure of personal information.  They provide that, generally, personal information can only be used for the reason it was collected and disclosed to the individual it is about.  Exceptions to the general rule include where there is a legal authority, the use or disclosure is necessary for law enforcement purposes or the individual has consented.
• Section 33 limits the circumstances when personal information may be sent out of Australia.
• Chapter 2, part 4 requires contractors to be bound to follow the privacy principles if they handle personal information for the Minister.

A breach of the privacy principles can result in a privacy complaint being made to the Minister, compliance action under the IP Act, or an order by the Queensland Civil and Administrative Tribunal for compensatory payments to the individual affected.