What is the right of access in the RTI Act?

The object of the Right to Information Act 20091 (Qld) (RTI Act) is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access. This guideline explains how this right applies and the limits of its application.

Section 23 of the RTI Act provides that subject to the Act, a person has the right to be given access to documents of an agency and documents of a Minister.

The following questions help identify the scope of the RTI Act's right of access:

  • which entities are covered by the RTI Act?
  • what is a document?
  • what is a ‘document of an agency’?
  • what is a ‘document of a Minister’?
  • which documents and entities are excluded from the RTI Act?·

Which entities are covered by the RTI Act?

To be subject to the RTI Act, an entity must be a Minister or an agency. Agency is defined in section 14 of the RTI Act and does not include an entity to which the RTI Act does not apply.

Is the entity an agency within the meaning of the RTI Act?

An agency is a department, local government, public authority, government owned corporation or a subsidiary of a government owned corporation.

For detailed guidance on refer to What is an agency?

Entities excluded from the RTI Act

Specific entities are excluded—either completely or only in relation to certain functions—from the operation of the RTI Act. These are listed in schedule two of the RTI Act. Applications may not be made to these entities and they are not required to comply with other obligations under the RTI Act.

The exclusion only applies to the actual entities; documents in the possession of agencies are not excluded from the Act just because they were created by or relate to an entity excluded in schedule two.

Complete exclusions

The following entities are completely excluded from the RTI Act:

  • the Governor
  • the Assembly, a member of the Assembly, a member of a committee of the Assembly, a parliamentary commission of inquiry or a member of a parliamentary commission of inquiry
  • the Parliamentary Judges Commission of Inquiry appointed under the expired Parliamentary (Judges) Commission of Inquiry Act 1988
  • a commission of inquiry issued by the Governor in Council whether before or after the commencement of this schedule
  • the parliamentary service established by the Parliamentary Service Act 1988
  • a quality assurance committee established under the Hospital and Health Boards Act 2011, section 82
  • a parents and citizens association under the Education (General Provisions) Act 2006
  • a grammar school to which the Grammar Schools Act 2016 applies.

Partial exclusions

Schedule two, part two of the RTI Act lists entities which are only excluded from the Act in relation to the function or activity specified in the schedule.

For these entities, the RTI Act does not apply to the entity in relation to documents received or brought into existence in performing the specified function or carrying on that activity.

Applications cannot be made to the Information Commissioner

An access application under the RTI Act may not be made or transferred to the Information Commissioner, the RTI Commissioner or the Privacy Commissioner.2

What is a ‘document’?

‘Document’ is not defined in the RTI Act. However, the Acts Interpretation Act 1954 (Qld) defines a document as including:

  • any paper or other material on which there is writing
  • any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
  • any disc, tape or other article, or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device)

The RTI Act does not apply to only paper documents. It applies to, for example, audio recordings, video recordings, text messages, electronic documents and databases.  The document does not need to be a final copy; document includes a draft.

For more information refer to Documents of an agency and documents of a Minister and Online and on your phone: processing access applications for social media, webmail and text messages.

Which documents are subject to the RTI Act?

In determining whether a document is subject to the RTI Act, it is necessary to consider:

  • whether it is a document of an agency or a document of a Minister under the RTI Act; and
  • if so, whether it is specifically excluded from the operation of the RTI Act.

For more information refer to Documents of an agency and documents of a Minister.

Document of an agency

The RTI Act applies only to documents of an agency and documents of a Minister. Section 12 of the RTI Act defines a document of an agency.

12      Meaning of document of an agency

In this Act, document, of an agency, means a document, other  than a document to which this Act does not apply, in the possession, or under the control of the agency whether brought into existence or received in the agency, and includes—

  • (a)     a document to which the agency is entitled to access; and
  • (b)     a document in the possession, or under the control, of an officer of the agency in the officer’s official capacity.

Possession

A document is an agency's possession if it physically (including electronically) holds the document.3 Whether the agency owns the document is irrelevant to the question of whether it is in the agency's possession.

Control

A document is an agency's control if the agency has the legal right to determine what happens to the document. This includes documents held outside the agency, for example, at an officer’s home, in offsite storage or with a cloud service provider.

Document of a Minister

Section 13 of the RTI Act defines document of a Minister.

13      Meaning of document of a Minister

In this Act, document, of a Minister, means a document, other than a document of an agency or a document to which this Act does not apply, in the possession or under the control of the Minister that relates to the affairs of an agency, and includes—

  • (a)     a document to which the Minister is entitled to access; and
  • (b)     a document in the possession, or under the control of, a member of the staff of, or a consultant to, the Minister in the person’s capacity as member or consultant.

The RTI Act applies to documents held by Ministers and Assistant Ministers,4 not to documents held by Members of Parliament.5 It does not apply to documents of past Ministers or previous governments unless the documents are in the possession of, or under the control of, a current Minister or agency.

Documents that do not relate to the affairs of an agency, such as political party documents or constituency matters, will not be documents of a Minister

Documents to which the RTI Act does not apply

Documents to which the RTI Act does not apply are listed in schedule one of the RTI Act. This exclusion applies to the documents themselves, so will apply regardless of who holds them.

For detailed guidance refer to Documents to which the RTI Act and IP Act do not apply.

  • 1This guideline also applies to the right of access in chapter 3 of the Information Privacy Act 2009 (IP Act), however the IP Act's right of access is limited to documents containing the applicant's personal information.
  • 2 Section 26 of the RTI Act.
  • 3 Holt, Reeves and Education Department; Others (third parties) 1998 4 QAR 310.
  • 4 As defined in schedule 5 of the RTI Act.
  • 5 As outlined in schedule 2, part 1, item 2 of the RTI Act which clarifies that the RTI Act does not apply to members of the Assembly or members or committees of the Assembly.

Current as at: June 21, 2021