Agency documents held by third party legal providers

Under the Right to Information Act 2009 (Qld)1 (RTI Act), people have the right to apply to a Queensland government agency to access documents of that agency.  Section 12 of the RTI Act states that a document of an agency is a document in the possession or under control of that agency, regardless of whether the document was brought into existence by the agency or received by it.  The definition also includes a document the agency is entitled to access.

Documents held by legal practitioners

Agencies often instruct solicitors to act on behalf of the agency. Under the Australian Solicitors Conduct Rules (the Rules), the agency is entitled to access documents related to the matter they instructed the solicitor on2.

Section 14 of the of the Rules states a solicitor’s client is entitled to any client documents. Client documents will generally include:

  • documents prepared by a solicitor for the client, or predominantly for the purposes of the client, for the purposes of the client’s matter
  • documents received by a solicitor from a third party in the course of the solicitor’s retainer, for or on behalf of the client or for the purposes of a client’s matter and intended for the use or information of the client.3

Outsourced legal work and RTI applications

If an agency has engaged outside legal practitioners, which are not part of the agency4 and receives an RTI application which captures documents in the possession of the legal practitioner that the agency is entitled to access, the agency will have to retrieve those documents. This is because the definition of document of an agency in section 12 of the RTI Act includes documents in the control of an agency as well as documents in the agency's physical possession.5

Where another agency is providing the legal services

Where another agency subject to the RTI Act is providing the legal service, some documents—documents which are not client documents but rather belong to the agency itself—relating to the legal work will not be documents the instructing agency is entitled to access. In circumstances where the scope of the access application is broad enough to extend to these other documents, it may be appropriate to consider a partial transfer of the application under section 38 of the RTI Act. Transferring the remaining part of an application will avoid delays to the applicant and ensure their entire application is progressed by relevant agencies as quickly as possible.

Note

While an agency may be required to retrieve and process documents held by a third party legal provider, documents of this kind are likely to be subject to legal professional privilege, which is a ground of exemption under the RTI Act6. Decision makers may wish to discuss this with the applicant prior to retrieving the documents to see if the applicant wishes to proceed with including those documents in their scope.

  • 1 Access is also available under Chapter 3 of the Information Privacy Act 2009 (Qld) (IP Act) and references to the RTI Act in this guideline should be read as including the IP Act.
  • 2 This is the case even where the solicitor has acted for the client in the past but does not presently do so, even where a significant amount of time has passed.
  • 3 Guidance on which documents a client is entitled to access can be found in Price v Nominal Defendant 1999 QAR 80, applying the principles in Wentworth v De Montfort & Ors (1988) 15 NSWLR 348.
  • 4 The Solicitor’s Rules referred to above also apply where another government agency has been engaged to perform legal work, eg Crown Law or the Office of the Director of Public Prosecutions.
  • 5 Where the legal provider charges a fee to search for and retrieve the documents, the agency is entitled to pass the actual cost on to the applicant as an access charge under section 6(a)(a)(i) of the Right to Information Regulation 2009 and section 4(1)(a)(i) of the Information Privacy Regulation 2009.
  • 6 Schedule 3, section 7.

Current as at: August 31, 2013