Under the Right to Information Act 2009 (Qld)1 (RTI Act), people have the right to apply for documents held by Queensland government agencies2. In some circumstances, this will include documents that are held by outside lawyers that have been engaged to provide legal services to the agency.
Agencies often engage outside lawyers to act on their behalf. In these circumstances, the agency is entitled to access client documents held by the lawyer it engaged.3 Client documents will generally include:
If an agency receives an access application that captures documents held by outside lawyers—including another government agency, such as Crown Law—that the agency is entitled to access, the agency must retrieve those documents.
This is because a document of an agency5 includes documents in the agency’s legal control and documents that the agency is entitled to access. See Documents of an agency and documents of a Minister for more information.
Where an agency (the second agency) is providing legal services to another agency (the first agency), the second agency will likely have a mix of client documents and non-client documents that relate to the legal services being provided. The first agency only has the right to access the client documents. The non-client documents belong to the second agency and the first agency has no right to retrieve them, even if the scope of any access application they receive is broad enough to capture them.
In those circumstances, it may be appropriate for the first agency to consider a partial transfer of the application to the second agency under section 38 of the RTI Act. This will avoid delays to the applicant and ensure their entire application is progressed by the relevant agencies as quickly as possible.
Decision makers may want to consider if refusal to deal under section 40 may apply to the part of the application that captures documents held by the third party lawyer. If so, there is no requirement to retrieve the documents. Refer to Refusal to deal – all documents exempt for more information.
Alternatively, decision makers may wish to discuss the likely refusal of access with the applicant to see if the applicant wishes to proceed with including those documents in the scope of their access application.
See Legal professional privilege for more information.
Current as at: February 8, 2019