The Right to Information Act 2009 (Qld) (RTI Act)1 provides a right to access information held by Queensland government agencies2. This right is subject to some limitations where access would be contrary to the public interest.
One of these limitations is Commissions of Inquiry, which Parliament has decided are entirely excluded as an entity from the operation of the RTI Act. Documents of a Commission of Inquiry, however, can be subject to the RTI Act where they are in the possession or control of an agency.
A person has a right to apply for access to documents in the possession and control of an agency. The definition of agency excludes an entity to which the RTI Act does not apply.3
A Commission of Inquiry issued by the Governor in Council, whether before or after the commencement of schedule 2, is an entity to which the RTI Act does not apply.4 As such, there is no right to apply to a Commission of Inquiry for access to documents under the RTI Act.
Commissions of Inquiry are issued by the Governor acting with the advice of the Executive Council. The provisions of the Commissions of Inquiry Act 1950 (Qld) facilitate their conduct.
Documents of a finalised Commission of Inquiry may be exempt from release because they:
If a non-publication order applies to documents sought by the applicant, the relevant documents will be exempt from release.
In Orth v Medical Board of Queensland10, the Information Commissioner considered documents subject to a Commission’s order that ‘no aspect of these proceedings is to be published in any form’. The power of the Commission to make a non-publication order is limited only to evidence given or documents produced to it.
Because the documents in question had never been produced or given in evidence to the Commission the Information Commissioner found that they were not exempt from release11 as the Commission had exceeded its power in making the non-publication order.
If non-publication orders do not apply to the documents or some of the documents, the agency must consider if other exempt information provisions apply or if disclosure would be contrary to the public interest.
Disclosure of information contained in documents of a finalised Commission of Inquiry may, on balance, be contrary to the public interest. The public interest test provides a flexible and comprehensive framework for considering and balancing all relevant public interest factors, taking into account the nature of the information, the sensitivities of the information and surrounding circumstances and its age.
The public interest factors listed in schedule 4 of the RTI Act are not exhaustive12, and the decision-maker is required to identify and consider all relevant public interest factors, including any relevant factors not listed in schedule 4. The type of information in the documents will determine which public interest factors are relevant, but where they contain, for example, information about individuals releasing the documents could disclose personal information13 or could prejudice the protection of the individual’s right to privacy14.
A Commission might indicate that documents, whilst not subject to a non-publication order, should not be published because it considers the information to be highly sensitive; this could give rise to a factor favouring nondisclosure.
An applicant applied to an agency for documents relating to a finalised Commission of Inquiry. The documents were not subject to a non-publication order but comments had been made by the Commission that some of the documents were highly sensitive. The remaining documents contained unsubstantiated and contentious allegations of wrongdoing and sensitive personal information of members of the community. As such, the decision maker considered the comments made by the Commission gave rise to a public interest factor favouring nondisclosure which should be attributed substantial weight despite the passing of time.
Current as at: October 6, 2015