Recent decisions by the Office of the Information Commissioner Queensland are timely reminders of the tips and traps for refusing access to information under the Right to Information Act 2009.
In three decisions handed down in recent months, the Office of the Information Commissioner has provided useful insight into some of the circumstances in which an agency under the Right to Information Act might be justified in refusing access to information.
Getting the balance right
Under the Right to Information Act, a Council or other State agency can refuse access to information if disclosure of that information is, on balance, contrary to the public interest.
The question that often arises here is what balancing test needs to be carried out?
This question was considered in Nine Entertainment Co Holdings and Queensland Police Service (“QPS decision”). In that matter, Channel 9 sought a review of a QPS decision to disclose the information the network requested, which was body-worn camera footage of positive drink and drug driving tests, but in a heavily edited format.
The Information Commissioner said that when decision makers under the Right to Information Act are deciding whether disclosure of information is contrary to the public interest, the decision maker must:
- identify any irrelevant factors and disregard them;
- identify relevant public interest factors favouring disclosure and nondisclosure;
- balance the relevant factors favouring disclosure and nondisclosure; and
- decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.
When the Information Commissioner carried out the balancing exercise, QPS’ decision to disclose only edited footage was upheld. The Commissioner recognised that QPS had effectively balanced the individual’s right to privacy against public interest factors favouring disclosure, such as maximising transparency.
Confidence, confidence, confidence
The Right to Information Act allows agencies to refuse access to information if could put the agency at risk of being sued for breach of confidence (in other words, for breaching the confidence of the party who provided the information in the first place). Information of this nature falls within the broad category of “exempt information”.
In Terracom Limited and Department of Environment and Science (No. 2) (“DES decision”) the Information Commissioner found that an obligation of confidence (and therefore the ability to refuse access to information on the basis that disclosure would give rise to an action in breach of confidence) arises where:
- the information is capable of being specifically identifiable as information that is secret, rather than generally available;
- the information has the necessary quality of confidence;
- the circumstances of the communication creates an equitable obligation of confidence;
- disclosure of the information to the applicant constitutes an unauthorised use of the confidential information; and
- disclosure causes detriment to the party who disclosed the information to the agency in the first place.
The DES decision also confirmed that the grounds under the Right to Information Act for refusing disclosure must be interpreted narrowly.
In the DES decision, the agency involved agreed to grant access to the information, but a third party objected when consulted under the Right to Information Act. The Information Commissioner upheld DES’s decision to disclose the information despite the wishes of the third party.
Privileged positions
Finally, the most recent decision of the Information Commissioner in OY76VY v Board of Professional Engineers of Queensland (“BPEQ decision”) looked at another category of “exempt information”, information that is subject to legal professional privilege.
An interesting feature of the information considered in the BPEQ decision was that the information was not legal advice, or correspondence from lawyers – it was an engineering report, prepared by BPEQ.
However, the BPEQ argued that the report was prepared for the dominant purpose of reasonably anticipated litigation.
The Information Commissioner agreed with the BPEQ that the engineering report was prepared for that purpose, and so the BPEQ’s original decision to refuse access to the report was affirmed.
What Next?
These case studies show only a small range of the matters that Councils and other State agencies are required to consider when assessing an access application made under the Right to Information Act.
Each access application needs to be considered carefully against the requirements under the Right to Information Act.
Preston Law’s experienced team of Government lawyers has extensive experience in privacy law and matters under the Right to Information Act. Our team prides itself on its service delivery and value for money for government clients. If you require further information, please contact Julian Bodenmann on 07 4052 0717.