Queensland's new information access scheme came into effect on 1
July 2009 with the passing of the Right to Information Act
2009 (RTI Act) and the Information Privacy Act 2009
(IP Act). Both Acts replace the Freedom of Information Act
1992.
The IP Act creates a right for individuals to apply for their own
personal information.
The RTI Act creates a right for individuals to apply for
information other than their own personal information. Personal
information is broadly defined and it means any information
(including opinion) about a person whose identity can reasonably be
ascertained from the information.
General principles
The key principle of the RTI Act and the IP Act is agencies must
give access to a document unless its release would be contrary to
the public interest.
Schedule 3 of the RTI Act includes types of information that is
not in the public interest, such as information subject to legal
professional privilege (the IP Act has the same exemptions by
referring to the relevant provisions of the RTI Act).
The RTI Act also sets out the process and factors for agencies to
decide whether disclosure of information would be 'contrary to the
public interest' (the IP Act uses the same process by referring to
the relevant provisions of the RTI Act). For example, factors
favouring nondisclosure include:
- the information could reasonably expected to impede the
administration of justice.
- the information could reasonably be expected to prejudice the
flow of information to a regulatory agency.
- the information is prohibited by an Act.
Impact on Government agencies
Both the RTI Act and the IP Act apply to information held by an
'agency'. The definition of 'agency' extends to public authorities
and Government Owned Corporations that do not operate in
competition with other private sector corporations.
Q-COMP must comply with the RTI Act and the IP Act when
considering the release of information. This means when you provide
us with information for us to perform our functions, this
information may be released under the RTI Act and the IP Act.
Impact on self-insured private companies
Self-insured employers who are private companies are not an
'agency' as defined by the RTI Act and the IP Act. However, they
must still comply with the Workers' Compensation and
Rehabilitation Act 2003 (WCR Act).
The WCR Act allows a claimant or a worker to ask an insurer for a
copy of documents required to be kept by the insurer about their
application for compensation or claim for damages. You must give
the person a copy of the documents requested unless you have a
reasonable excuse not to do so.
The WCR Act provides a reasonable excuse for an insurer, which
includes the document requested meeting the requirements of
Schedule 3 of the RTI Act.
As noted above, Schedule 3 of the RTI Act includes types of
information not in the public interest. You should note Schedule 3
of the RTI Act isn't identical to the exemptions contained in the
repealed Freedom of Information Act 1992. While there's an
overlap, some of the previous exemptions are not repeated.
For example, the previous exemption for matters affecting personal
affairs included a requirement that the disclosure 'might be
prejudicial to the physical or mental health or wellbeing of the
person'. Now the most similar exemption has the requirement that
the disclosure 'could reasonably be expected to endanger a person's
life or physical safety.' The change in wording suggests a more
narrow ground as a reasonable excuse for non-disclosure, consistent
with the disclosure bias of the RTI Act and the IP Act.
Self-insured employers will need to carefully scrutinise the new
exemptions when considering a request to release information, as
they may vary from the previous exemptions.
Legal advice
Please note the information in this article is a general guide
only and is not a full explanation of the law. The information in
this article should not be relied on in place of legal advice and
Q-COMP cannot take responsibility for any reliance upon the
information in this article. When making decisions affecting legal
rights, readers should obtain their own independent legal
advice.
