Under the Right to Information Act 2009 (RTI Act)1, applications for access to documents may be made to agencies and Ministers. Access applications to Ministers can only be made for documents of a Minister2. A document of a Minister is a document relating to an agency's affairs that is in the Minister's (or their staff or consultant's) physical possession, legal control, or is one the Minister is entitled to access.
When a Minister ceases being a Minister their documents are no longer documents of a Minister. The Queensland Ministerial Handbook3 sets out what is to be done with Ministerial documents depending on the circumstances.
Where the Minister ceases to hold their portfolio without a change of government, ministerial documents may be transferred to State Archives or given to the Minister who takes over their portfolio responsibilities. Official records that relate to the Minister personally (for example, their official diary) should be transferred to State Archives.
Where there has been a change of government, Cabinet records must be returned to the Cabinet Secretariat, agency records must be returned to the agency, and Ministerial documents should be transferred to Queensland State Archives4
Because Ministers hold personal commissions from the Governor, a change of Minister will impact on-foot access applications. When those personal commissions cease so do any current applications to that Minister and directions authorising decision-making will no longer be valid.
Documents of former ministers lodged with State Archives become documents of an agency and documents of former Ministers passed to an incoming Minister remain documents of a Minister. Both of these can be applied for under the RTI Act.
Access to documents of former Ministers will only be refused if they are exempt under schedule 3 of the RTI Act, contrary to the public interest to release under schedule 4, or fall within one of the categories of information to which access may be refused under the RTI Act.
Consultation will be required if a decision is made to release information that is reasonably likely to be of concern to a third party. The need for consultation will need to be decided on a case by case basis, but possible third parties could include the former Minister, the current Minister of the former Minister's portfolio or the portfolio agency, or the leader of the former Minister's political party, depending on the nature of the documents.
Queensland Parliamentary Services may be of assistance with consulting former Ministers.5
Current as at: November 16, 2017