The Right to Information Act 2009 (Qld) (RTI Act)1 applies to documents of an agency and documents of a Minister. This guideline will help decision makers identify when a document is a document of an agency or a document of a Minister.
For detailed guidance on dealing with these, refer to the guideline Online and on your phone: access applications for social media, webmail and text messages
Documents are not just paper. They include any other material with writing or meaningful marks, symbols or figures on it, and any disc, tape or other article from which images, writing or messages can be produced.2
The RTI Act does not distinguish between draft documents and final documents.3 If an in-scope document is a document of an agency (or of a Minister) it must be processed. Drafts cannot be excluded unless the applicant agrees.
Under the RTI Act an agency is a Queensland Government department, local government, or public authority. A document of an agency includes any document the agency is entitled to access or which is in the agency’s physical possession or legal control4, as long as it is not a document to which the RTI Act does not apply5.
In these cases, the agency must contact the person or organisation and retrieve the documents so they can process them as part of the application.
Under the RTI Act a document of a Minister is a document which relates to the affairs of an agency and is in the Minister’s physical possession or legal control or one which the Minister is entitled to access7. It does not include a document of an agency or a document to which the RTI Act does not apply.
Minister in the RTI Act includes an Assistant Minister. Documents of an Assistant Minister can also be applied for under the RTI Act and Assistant Ministers are able to give directions under the RTI Act for their applications to be dealt with by another person.
A document of a Minister also includes a document in the possession, or under the control, of a member of staff of, or a consultant to, the Minister in the person’s capacity as member or consultant.8
While document of a Minister includes a document the Minister is entitled to access, the definition explicitly excludes a document of an agency. Any documents in the possession of an agency are documents of that agency; they cannot be documents of a Minister, regardless of the Minister's entitlement to access them.
A document will relate to the affairs of an agency where it bears a direct or indirect relationship to:
This means it is necessary to consider the kind of information the documents contain.
In Frecklington, MP and Premier and Minister for Trade (No. 2)10(Frecklington No 2) the Commissioner considered whether a Ministerial staff member’s browser history related to the affairs of an agency. Browser history is an unintentionally and automatically generated list of URLs, being an unreliable record of resources accessed by a user, which may potentially contain times and dates but no detail of the information on the webpage visited.11 Having regard to the general character and content of web browser histories and their lack of ‘meaningful content’ the Commissioner12 did not consider the browser history requested by the applicant had any direct or indirect relationship to the affairs of an agency.
If the information does not relate to the affairs of an agency it will not be a document of a Minister, even if it is in the possession or control of the Minister or the Minister is entitled to access it. Examples include:
A Minister has several papers in a folder on their desk:
Only the first document relates to the affairs of the agency and is a document of the Minister. The rest do not, and cannot be applied for under the RTI Act.
In the case of a mixed document, containing, for example, information related to both the Minister’s electorate and the affairs of the agency, it will be document of a Minister.
A document is in the possession of an agency or Minister (or the Minister’s consultant or staff member) if it is in their physical possession. A document is in the control of an agency or Minister if they have a legal right to control the document.13 For a detailed discussion on physical possession and legal control, please refer to the Annotated Legislation.
Many Electronic Document Records Management Systems (eDRMS) include a functionality which shows the history of individual documents, for example a revision history, showing who has revised it and when. This functionality usually creates a snapshot of what the document looked like at a specific point in time, allowing the system to recreate a past version.
Doing so, however, does not retrieve an existing document; rather, it creates a new document, reconstructed from the data held in the revision history. As such, given RTI applications apply only to documents that exist on the day the application is made9, these will generally15 not be in scope of an access application.
Current as at: May 28, 2020