The RTI Act also provides that some documents are excluded from the operation of the RTI Act.2 These are listed in schedule 1 and 2 of the RTI Act.
This guideline outlines the application of schedule 1 of the RTI Act. For information on schedule 2 and on dealing with an application for schedule 1 or 2 documents, refer to Applications outside the scope of the Act. These include RTI and IP Act processing documents.
Applications to access documents to which the RTI Act does not apply (as listed in schedule 1) are not subject to the RTI Act.5 This means that an applicant has no right to formally apply for such documents.6 Despite this, agencies 7 may release these documents, but must do so through means other than the RTI Act, such as through administrative release schemes or where permitted or required by law.8
Schedule 1 lists specific types of documents to which the RTI Act does not apply, each of which is discussed below.
The RTI Act does not apply to documents, parts of documents or summaries of documents that originated with or were received from certain bodies dealing with security matters.9
Specifically, the RTI Act does not apply to:
Schedule 1, section 1 of the RTI Act only refers to documents that have originated with, or have been received from , any of the entities listed above. It does not include documents created by another entity and sent to one of the specified agencies. Therefore, if an agency subject to the RTI Act sent a letter to one of the listed entities, the file copy of the letter would be subject to the RTI Act, although any response would not.
The Information Commissioner has not made any decisions in relation to schedule 1, section 1 of the RTI Act or the equivalent provision under the repealed Freedom of Information Act 1992 (Qld) (repealed FOI Act).17
The RTI Act does not apply to a document created or received in carrying out activities under the Terrorism (Preventative Detention) Act 2005 (Qld) ( TPD Act ).
The TPD Act allows a person to be taken into custody and detained in order to prevent an imminent terrorist act or to preserve evidence relating to a terrorist act.18
The RTI Act does not apply to particular documents created under the Crime and Corruption Act 2001 (Qld) (CC Act). In summary, this includes documents concerning:
Documents excluded from the RTI Act to the extent they comprise information under the CC Act are each discussed in further detail below.
Chapter 3, part 6 of the CC Act deals with surveillance devices which are defined in schedule 2 of the CC Act to mean:
Part 6A of the CC Act deals with controlled operations and controlled activities for misconduct offences.
Misconduct offence means alleged or suspected criminal conduct that may be official misconduct or misconduct under the Police Service Administration Act 1990 (Qld).23
A controlled operation is an operation to investigate misconduct offences. Section 132 of the CC Act provides that permission may be granted for appropriate commission officers to engage in activities that may ordinarily be unlawful as part of the investigation of a suspected misconduct offence.
A controlled activity involves a single meeting between a police officer or commission officer and a police officer who is suspected of a misconduct offence (relevant officer), where the true purpose of the communication is concealed from the relevant officer and where the commission officer or police officer engage in otherwise unlawful activity.24
Part 6B of the CC Act deals with assumed identities.
The purpose of part 6B is to facilitate investigations and intelligence gathering in relation to misconduct offences.25 This purpose is achieved by providing for the lawful acquisition and use of an assumed identity in relation to investigations and intelligence gathering of misconduct offences.26
Divisions 2 through 7 deal with issues such as the process for requesting and obtaining authority for the assumed identity;27 the authority, creation and destruction of birth certificates and other evidence of assumed identity;28 protections and indemnities from criminal responsibility;29 reporting and record keeping.30
Chapter 3, part 7 of the CC Act deals with covert search warrants for criminal investigations.
Chapter 3, part 8 of the CC Act provides additional powers (additional powers warrants) with a Court's approval. This part applies only for a misconduct investigation or a crime investigation relating to terrorism.
An authorised commission officer may apply to a Supreme Court Judge for a warrant authorising the use of powers under chapter 3, part 8 of the CC Act. The RTI Act does not apply to documents which relate to powers exercised under section 165 of the CC Act, including:
Section 371 of the CC Act deals with warrants issued under the repealed Criminal Justice Act 1989 (Qld) or the repealed Crime Commission Act 1997 (Qld).
A warrant issued under those repealed Acts is taken to be validly issued and in force under the CC Act.34
The RTI Act does not apply to any document concerning a warrant under the repealed Criminal Justice Act 1989 (Qld) or the repealed Crime Commission Act 1997 (Qld) .
The RTI Act does not apply to documents created under, or to the extent they comprise information about some activities under the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) as outlined below:
This chapter provides nominated police officers with legal authority to engage in activities that may otherwise be unlawful.35 The nominated police officers will not be criminally or civilly liable for any acts or omissions during the period of the controlled activity. 36
This chapter concerns the process involved for obtaining authority for a police operation ( controlled operation ) which would otherwise amount to unlawful activity. Approval for a controlled operation must be sought from the chief executive officer of the relevant agency.37 There are particular matters that must be taken into account in deciding the application for a controlled operation.38
Each formal application made for a controlled operation is required to be kept39 however such documents are not subject to the RTI Act.
These provisions enable a law enforcement agency to allow either a law enforcement officer or a civilian to acquire or use an assumed identity for the purposes of intelligence gathering or an investigation.
Applications must be in writing and include details such as the name of the person who will assume the identity, details of the proposed assumed identity, reasons for the need for the assumed identity, and details of the investigation or intelligence gathering exercise in which the assumed identity will be used.40 Provision is also made for the creation of birth certificates for the purposes of assumed identities.41
Documents, to the extent they contain such information, are not subject to the RTI Act.
This chapter establishes procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices in criminal investigations.42
This chapter authorises the taking and analysis of blood and urine samples from a person a police officer reasonably suspects of having committed a relevant sexual or other serious assault offence.43The purpose of this chapter is to help ensure victims of particular sexual offences and serious assault offences and certain other persons receive appropriate medical, physical and psychological treatment.
Documents relating to such matters are not subject to the RTI Act if they would enable the identity of a person to whom a disease test has been ordered or a victim of a sexual or serious assault offence to be revealed.
The RTI Act does not apply to a document to the extent it comprises information kept in a register under chapter 21, part 2, division 2 of the PPR Act which relates to registers of covert acts. Schedule 6 of the PPR Act defines 'covert act' to mean:
Chapter 8 of the PPR Act enables a police officer to apply to a Supreme Court Judge for an order directing a financial institution to give information to a police officer about a named person.44
Chapter 9 of the PPR Act concerns covert search warrants.45
Chapter 11 of the PPR Act concerns controlled operations.46
Chapter 13 of the PPR Act concerns surveillance device warrants.47
The RTI Act does not apply to a document created under part 5A of the Police Service Administration Act 1990 (Qld). This part deals with alcohol and drug tests for members of the police service.
The RTI Act does not apply to a document created, or received, by the Queensland Integrity Commissioner for chapter 3 of the Integrity Act 2009 (Qld).
Chapter 3 of the Integrity Act 2009 (Qld) deals with the provision of advice on ethics or integrity issues by the Integrity Commissioner to prescribed designated persons. Designated person is defined to include all Members of the Legislative Assembly, statutory office holders, chief executives and senior executives of departments and public service offices and Ministerial office and Assistant Minister office staff.48
The RTI Act does not apply to a document created, or received, by the Prostitution Licensing Authority for the Prostitution Act 1999 (Qld). The Prostitution Act 1999 (Qld) deals with such documents as brothel licences,49development approvals for brothels 50and registers of licence holders.51
The RTI Act does not apply to a document of an agency that is a coronial document (other than a document given to, or accessed by the agency under section 25, 54 or 54A of the Coroners Act 2003 (Qld) while a coroner is investigating the death to which the document relates.
Schedule 2 of the Coroners Act 2003 (Qld) defines coronial document:
Coronial document means a document prepared for an investigation, other than a record, or a copy of a record, of an inquest made under the Recording of Evidence Act 1962.
Therefore, the RTI Act does not apply to coronial documents while a coroner is investigating a death to which the document relates except for documents under section 25, 54 and 54A of the Coroners Act 2003 (Qld).
Once a document is no longer related to a current coronial investigation, it will become subject to the RTI Act. 52
The RTI Act does not apply to a document created for a root cause analysis of a reportable event under:
A reportable event , as defined by section 36A of the Ambulance Service Act 1991 (Qld), includes for example, the following events which happen while an ambulance service is being provided to a person:53
A reportable event as defined by sections 94 and 95 of the Hospital and Health Boards Act 2011 (Qld) means an event prescribed under a regulation that happens while a health service is being provided at a health service facility. Section 29 of the Hospital and Health Boards Regulation 2012 (Qld) provides a definition for reportable event for the purposes of the Hospital and Health Boards Act 2011 (Qld) which includes, for example: 54
Root cause analysis of a reportable event means a systematic process of analysis where factors that contributed to the reportable event may be identified and remedial measures to prevent recurrence may be identified.55The definition does not include investigating professional competence of a person in relation to the event or determining blame for the event.56
The RTI Act does not apply to a document created, or received by, the Workers' Compensation Regulatory in carrying out its function of monitoring the financial performance of self-insurers.57
Self-insurer is defined in schedule 6 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as a single employer or group employer licensed under chapter 2, part 4. This provision allows licensed insurers to provide their own accident insurance for their workers, instead of insuring with WorkCover Queensland ( WorkCover ).58
Schedule 1, section 10(b) of the RTI Act also provides that the RTI Act does not apply to a document created, or received, by WorkCover in carrying out its commercial activities about policies, applications for compensation, or proceedings for damages. 59
This part re-enacts the effect of the repealed sections 475(2) and (3)(a) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) which provided that the repealed FOI Act did not apply to the specified types of documents. Decisions in relation to those sections may be persuasive in applying the schedule 1, section 10(b) provision as there are not yet any relevant decisions under the RTI Act.
In Cumpston and WorkCover Queensland ,60he applicant sought access to a report of WorkCover's outstanding claims under the repealed FOI Act.
WorkCover refused access to the report on the basis that it was sourced and brought into existence in the course of WorkCover's "commercial activities" 61 and therefore the FOI Act had no application to the report.
On external review, in order to determine whether the report was received or brought into existence by WorkCover in carrying out its commercial activities, the Assistant Commissioner considered the content of the report, having regard to:
The Assistant Commissioner considered that the purpose of the report was to inform the Board and aid WorkCover in:
The Assistant Commissioner was also satisfied that the report was not prepared pursuant to any statutory reporting obligations. The Assistant Commissioner affirmed the decision to refuse access to the document on the basis that the report was prepared in the course of WorkCover's "commercial activities" and was therefore excluded from the application of the FOI Act.
The RTI Act does not apply to any of the following documents under the Biodiscovery Act 2004 (Qld) –
(a) a benefit sharing agreement;
(b) a record kept by a department about a benefit sharing agreement or proposed benefit sharing agreement;
(c) a subsequent use agreement;
(d) a record kept by a department about a subsequent use agreement;
(e) a record kept by a department about a collection authority;
(f) a document identifying a person who gave a sample of native biological material to a receiving entity under section 30 of that Act.
The Biodiscovery Act 2004 (Qld) was implemented to regulate the collection and commercial use of native biological material, and to ensure Queensland benefits from its use.63
"Biodiscovery" is defined as biodiscovery research,(being the analysis of molecular, biochemical or genetic information about native biological material for the purpose of commercialising the material) or the commercialisation of native biological material of a product of biodiscovery research.64
A benefit sharing agreement is defined in section 33 of the Biodiscovery Act 2004 (Qld) as being where the DSDI Minister 65 enters into an agreement with a biodiscovery entity under which the State gives the entity the right to use native biological material for biodiscovery and the entity agrees to provide benefits of biodiscovery to the State.
Under 206D of the RTI Act, these documents continue to be documents to which the RTI does not apply:66
The RTI Act does not apply to a document to the extent it comprises confidential commercial information within the meaning of the Gene Technology Act 2001 (Qld) .
Information may be declared "confidential commercial information" under the Gene Technology Act 2001 (Qld) if it is:
The regulator must declare that the information is confidential commercial information for the purposes of the Act. However, it may refuse to declare information as confidential commercial information if satisfied that the public interest in disclosure outweighs the prejudice the disclosure would cause to any person. 68
The RTI Act does not apply to:
Either of the following documents –
The purpose of the Sugar Industry Act 1999 (Qld) is to facilitate an internationally competitive, export oriented sugar industry based on sustainable production that benefits those involved in the industry and the wider community.69 The sugar industry has been through a range of legislative changes since 1991 and has had various representative and overseeing bodies.70 However, only the documents for the purposes and dates listed above are not subject to the RTI Act.
The RTI Act does not apply to a document created or received by the Brisbane Organising Committee for the 2032 Olympic and Paralympic Games in carrying out its functions under the Brisbane Olympic and Paralympic Games Arrangements Act 2021.
It also does not apply to documents to the extent that those documents comprise information that meets all three of the following criteria:
The RTI Act does not apply to a document received or brought into existence by government owned corporations ( GOCs ) prior to the commencement of the RTI Act and to which the repealed FOI Act did not apply.
The repealed FOI Act provided that the Act did not apply to documents received, or brought into existence, in carrying out specified activities of a GOC.71 These activities had to be of a kind mentioned in schedule 2 and they were excluded to the extent provided for in schedule 2.
Schedule 2 of the repealed FOI Act referred to the following GOCs in relation to the relevant corresponding documents:
In the context of the provisions discussed above, 'excluded activities' means commercial activities or community service obligations prescribed under the relevant regulation. 73
The RTI Act does not apply to a document created or received prior to the commencement of the RTI Act 74 to which the repealed FOI Act did not apply under section 11B of that Act.
Section 11B of the repealed FOI Act provided that the FOI Act did not apply to documents received or brought into existence by local government corporatised corporations ( LGOC ) in carrying out a corporatised corporation's activities to the extent provided under section 1205 of the repealed Local Government Act 1993 (Qld) ( repealed LG Act ). Section 1205 of the repealed LG Act provided that the FOI Act did not apply to a document received or brought into existence by a corporatised corporation in carrying out its excluded activities.
A corporatised corporation means an LGOC or subsidiary of a LGOC.75 An excluded activity means commercial activities or community service obligations prescribed under a regulation.76
The RTI Act does not apply to documents received by or for the Attorney-General, the justice department or a judicial appointments adviser that expresses a person's interest in being considered for judicial appointment in Queensland. It also does not apply to documents created or received by or for the Attorney-General, the justice department or a judicial appointment adviser for the purpose of:
Judicial appointments adviser means an entity that has a function under a judicial appointments protocol of:
Judicial appointments protocol means a protocol establishing a process for considering, consulting on or recommending candidates for judicial appointments in Queensland.
Justice department means the department in which the Attorney-General Act 1999 is administered.
Schedule 1, section 16 applies in relation to documents created or received on or after 15 July 2016 and a document to which this section applies is taken to have always been a document to which this Act does not apply.
Applications that are made for access to a document to which the RTI Act does not apply are described as being outside the scope of the RTI Act.77
The agency will therefore be required to give a prescribed written notice of that decision to the applicant within 10 business days after the purported application is received.78 The applicant may seek internal and/or external review of the decision as it is a reviewable decision.79
Current as at: August 12, 2022