4. FOI

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Freedom of Information Right to Information Act 2009 (Qld) The Information Privacy Act 2009 (Qld) General • No standing requirement—open to everyone • Purpose—Keeping government accountable o media investigating the Government; o private citizens to check and/or correct information on the public record; o discovery in litigation, particularly in judicial review. • Functions of FOI law o Key feature—creates legally enforceable right of access to government documents  Does not relate to private information  But governments often hold information about private enterprise o Imposes positive obligation to publish information  Not dependent on request for document o Imposes limitations on the general right of access o Mechanism to have documents about oneself corrected (now in Information Privacy Act (Qld)) • Related legislation o Public materials becoming available after 30yr period, etc: Archives Act (Cth) & Public Records Act (Qld) o Privacy legislation: Privacy Act (Cth) & Information Privacy Act (Qld) Reform • 2008: Solomon Report—recommendations to improve Freedom of Information Act. o Abuse of Cabinet Exception (s 36 of FOI Act)  mere submission to cabinet was sufficient to exempt it from FOI o Culture of secrecy—agencies looking for exception in Act • → Right to Information Act (push model) introduced, replacing FOI Act (pull model) o Also enacted Information Privacy Act (Qld) Right of Access • Legally enforceable right of access to— (s23) o "documents of an agency"; and o "official documents of a Minister". • "document of an agency" = (s12) o A document which the agency is entitled to access; and o A document under the control of an officer of the agency in the officer's official capacity • “agency” includes GOCs and GOC subsidiaries o ↔ Old FOI Act • Underlying policy of pro-disclosure o Must give access unless would be contrary to public interest: ss44(1), 48(1); object s3 (The primary object of this Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access) Andrew Trotter LWB335 Administrative Law o Grounds for refusal to be interpreted narrowly: s47(2)(a) o May give access even if ground for refusal applies: s47(2)(b) o Offence to direct to find an exemption to avoid having to disclose information: s175 Exemptions Particular Exemptions: s47(3) (provision refers to other sections, then to schedules) • Exemptions subject to a self-contained public interest test o Cf. previous legislative philosophy—statutes basically declaring there could be no competing interest once a document comes under a certain category • Exemption for certain information— (s47(3)(a) & s48 & Sch 3 RTI Act) o was created for the consideration of cabinet; o would reveal any consideration of cabinet, or prejudice the confidentiality of cabinet considerations or operations; or o was created in the course of the state’s budgetary process o Legal professional privilege • Exemptions for certain entities— (Sch 2) o Governor o Assembly, a member of the Assembly, a committee of the Assembly, a member of a committee of the Assembly, a parliamentary commission of inquiry or a member of a parliamentary commission of inquiry o a commission of inquiry issued by the Governor in Council o Queensland Treasury Corporation (QTC) o Court documents—only those relating to executive functions • Exemptions for certain documents—eg documents generated within ASIO: Sch 1 (law enforcement & prevention of terrorism etc) • Exemption for applications by or on behalf of children—disclosure must be in the best interests of the child: s47(3)(c) & s50 General Public Interest Exemption: s47(3)(b) & s49 (independent of other categories): o Factors— (Sch 4) • Compulsory steps— (s49(3)) Identify factors ()a Identify irrelevant factors in deciding whether disclosure contrary to public interest, including— (Sch 4 Pt 1)
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