Information Obligations of Public
Service Employees
Good public servants are aware of information which must be
protected and information there is authority to disclose.
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Information Obligations of Public Service
Employees: Overview
Who is this guideline for?
This guideline is intended to assist Public Service Employees, who are subject to
the Public Service Act 20081 (primarily Queensland Government Departmental
employees), to understand the information rules which apply to them. However,
many of the rules discussed in this guideline also apply to other Queensland
public sector employees, including those working in local government, statutory
authorities, government owned corporations and other public sector agencies.
When we say you in this guideline we mean Public Service Employees. If you
are a Public Service Employee all the rules in this guideline apply to you.
For those who are not Public Service Employees: look for the icon of the sun2.
These rules are not limited only to Public Service Employees and they may apply
to you as well.
If there is a sun next to a section, the information is generally
applicable to people who work in a Queensland public sector agency.
What is this guideline intended to achieve?
In addition to oversight, audit and review responsibilities the functions of the
Office of the Information Commissioner (OIC) include giving information,
assistance and training to agencies and the public on matters relevant to the
Right to Information Act 2009 and the Information Privacy Act 2009.
In 2008 the Queensland Government committed to developing a whole of
government framework that would set the long term goals and strategic agenda
for government information policy. The whole of government strategic
information policy framework includes the following elements3:
A move to a push model
A clearly articulated governance framework; and
A comprehensive and integrated information policy.
1 Section 9 of the Public Service Act 2008 sets out that a person is a Public Service Employee if they are
employed under that Act as a Public Service Officer, a general employee or a temporary employee. Section 8
provides that a Public Service Officer is a chief executive, a senior executive or an officer of another type.
2 The website version of this guideline does not use the sun icon. The relevant sections instead appear in a
yellow box.
3 Queensland Government The Right to Information – A response to the review of Queensland’s Freedom of
Information Act, Queensland Government August 2008, page 4.
Right to Information and Privacy Guidelines 2
One barrier for senior executives and public service employees in fostering a
more open public sector culture is how they reconcile obligations under the RTI
and IP Act with other information obligations.
This guide is intended to assist you in developing an understanding of how those
obligations interact, give you a strong foundation on which to build a better
culture around information, and ensure that you:
understand the rules and laws which define your obligations towards
government information
understand the broader ethical context in which you undertake your role,
both as it relates to your agency and to government as a whole; and
can reconcile your obligations of proactive and maximum disclosure with
other obligations that prevent or limit disclosure of information.
Customising the guide
You are free to customise this guideline for your specific agency or need and you
may reproduce any part of it for your use, for example in education materials or
for training purposes, as long as you acknowledge the Office of the Information
Commissioner as the original author.
If you require a Microsoft Word version of the guideline please email the Office of
the Information Commissioner at [email protected].
Disclaimer
This guide is introductory only, and deals with issues in a general way. It is not
legal advice. Additional factors may be relevant in specific circumstances. For
detailed guidance, legal advice should be sought.
Published 1 August 2012 and Last updated 28 May 2015. Changes to legislation after the
update date are not included in this document
This guide is introductory only, and deals with issues in a general
way. It is not legal advice. Additional factors may be relevant in
specific circumstances. For detailed guidance, legal advice
should be sought.
If you have any comments or suggestions on the content of this
document, please submit them to [email protected]
Right to Information and Privacy Guidelines 3
Information Obligations of Public Service
Employees: Table of Contents
Information Obligations of Public Service Employees: Overview ................. 1
Who is this guideline for? ................................................................................. 2
What is this guideline intended to achieve?...................................................... 2
Customising the guide ..................................................................................... 3
Disclaimer ........................................................................................................ 3
Information Obligations of Public Service Employees: Introduction ............ 6
Information is to be provided to the maximum extent possible ......................... 6
What is information? ........................................................................................ 6
Electronic information and electronic documents ............................................. 6
What does ‘making information available to the maximum extent possible’
mean for you?.................................................................................................. 7
Where do these rules come from? ................................................................... 7
Why do I have to follow these rules?................................................................ 7
What are the consequences of not following these rules?................................ 7
Where can I find out about these rules?........................................................... 7
Information Obligations of Public Service Employees: Part One .................. 8
Rules which require the release of information .............................................. 8
1.1 Administrative access schemes ........................................................... 8
1.2 Access to documents under the Right to Information Act 2009 ............ 9
1.3 Publication Schemes.......................................................................... 10
1.4 Access to documents under the Information Privacy Act 2009 ........... 12
1.5 State archives and the Public Records Act 2002................................ 12
1.6 The Queensland Ombudsman ........................................................... 14
1.7 The Auditor-General and the Queensland Audit Office....................... 14
1.8 The Information Commissioner .......................................................... 15
1.9 Documents required for a court proceeding........................................ 16
1.10 Crime And Corruption Commission .................................................... 17
1.11 The Coroners Act 2003 ...................................................................... 18
1.12 Employee records under the Public Service Regulation 2008 ............ 18
1.13 Information Standard 33: Information Access and Use....................... 19
Right to Information and Privacy Guidelines 4
1.14 Contract Information under the State Procurement Policy .................. 19
Information Obligations of Public Service Employees: Part Two ................ 21
Rules which permit the release of information in specific circumstances.. 21
2.1 Disclosure Logs ................................................................................. 21
2.2 Statements of reasons under the Judicial Review Act 1991 ............... 22
2.3 Natural Justice ................................................................................... 23
2.4 Common law duty of fidelity ............................................................... 25
2.5 The Queensland Public Sector Code of Conduct ............................... 25
2.6 Public interest disclosures.................................................................. 26
Information Obligations of Public Service Employees: Part Three.............. 28
Rules which limit the release of information ................................................. 28
3.1. Personal information: when can you disclose it and to whom? ........... 28
3.2. Confidentiality (contractual and equitable).......................................... 29
3.3. Cabinet Documents and Cabinet Information ..................................... 30
3.4. Secrecy Provisions............................................................................. 31
3.5. Information Security Classification ..................................................... 31
3.6. Intellectual Property and Information Licensing .................................. 32
3.7 Defamation and defences .................................................................. 34
3.8 Legal professional privilege................................................................ 35
Index................................................................................................................. 36
Appendices ...................................................................................................... 38
Appendix 1: The Ethical Environment of the Public Service Agency ...... 38
Appendix 2: Public Interest Disclosures .................................................... 41
Appendix 3: Defences in the Defamation Act ............................................ 43
Appendix 4: Secrecy provisions ................................................................. 45
Right to Information and Privacy Guidelines 5
Information Obligations of Public Service
Employees: Introduction
Information is to be provided to the maximum extent possible
This principle is reflected in the Right to Information Act 2009, which recognises4
that government information is a public resource and access to it is necessary for
the effective functioning of a democratic society. Government openness
increases government accountability, community participation in government and
the quality of government decision making.
What is information?
The term information is extremely broad. There is a useful definition in
Information Standard 44—Information Asset Custodianship (IS44), which states
that information is:
any collection of data that is processed, analysed, interpreted, organised,
classified or communicated in order to serve a useful purpose, present facts
or represent knowledge in any medium or form. This includes presentation in
electronic (digital), print, audio, video, image, graphical, cartographic,
physical sample, textual or numerical form.
Electronic information and electronic documents
The Electronic Transactions (Queensland) Act 2001, section 16, provides that
where a State law requires or permits the production of a paper document an
electronic version may be provided if the following conditions are met:
The method used to produce the electronic copy of the document ensures
the integrity of the document’s information, ie, the information is complete
and unaltered, apart from immaterial or endorsed changes.
The information in the electronic documents will, at the time the
communication is sent, be readily accessible.
The person the paper document is to be given to agrees to receive an
electronic copy of the document.
This means that where you are giving information to someone you can
provide it electronically if that person agrees. Providing information
electronically can increase its useability and reduce costs and time for
access.
4 Preamble to the Right to Information Act 2009. 6
Right to Information and Privacy Guidelines
What does ‘making information available to the maximum extent possible’
mean for you?
It means you have to be familiar with the information rules which exist in
government. These are rules which:
Require you to release information
Permit you to release information in some circumstances; and
Limit the release of information.
Where do these rules come from?
The information rules come from a number of places: legislation (Acts,
regulations), statutory instruments, such as certain guidelines made under
legislation, Information Standards or Public Service Directives, common law and
government handbooks.
Why do I have to follow these rules?
All Public Service Employees under the Public Service Act 2008 are subject to
the Public Sector Ethics Act 1994 and the Queensland Government Code of
Conduct for the Queensland Public Service5; these require you to follow the law
and the rules of government. You also have to follow these rules because
Parliament has decided they are in the public interest: they protect what
information needs to be protected, release what needs to be released, and
provide a framework for making decisions about when it is in the public interest to
release or withhold information.
What are the consequences of not following these rules?
Depending on the nature of the rule and the reason it was not followed, a failure
to comply could result in the removal of the information’s protection, a breach of
an Act, or a breach of your ethical obligations. In some cases offences and
penalties will apply for a breach of an Act.
Where can I find out about these rules?
You can find out the rules which:
1. Require you to release information in Part 1 of this guideline.
2. Permit you to release information in specific circumstances in Part 2 of
this guideline.
3. Limit the release of information in Part 3 of this guideline.
5 The Queensland Government Code of Conduct for the Queensland Public Service requires public sector
employees to manage information as openly practicable within the legal framework and includes specific
requirements relating to the handling of government-held information – see also Appendix 1 of this guide.
Right to Information and Privacy Guidelines 7
Information Obligations of Public Service
Employees: Part One
Rules which require the release of information
1.1 Administrative access schemes
1.2 Access to documents under the Right to
Information Act 2009
1.3 Publication Schemes
1.4 Access to documents under the Information
Privacy Act 2009
1.5 State Archives and the Public Records Act
2002
1.6 The Queensland Ombudsman
1.7 The Auditor-General and the Queensland
Audit Office
1.8 The Information Commissioner
1.9 Documents required for a court proceeding
1.10 Crime and Corruption Commission
1.11 The Coroners Act 2003
1.12 Employee records under the Public Service
Regulation 2008
1.13 Information Standard 33 – Information
Access and Use
1.14 Contract information under the State
Procurement Policy
1.1 Administrative access schemes
As part of the goal of pushing information out to the public, agencies need
internal policies and schemes which make information available to the public
without requiring a formal application. One example of such a scheme is
Queensland Health’s administrative access scheme which allows people to
access their own medical records.
Agencies may also be subject to specific legislation which requires or permits
access to information, for example land title information under the Land Title
Act 1994. These will generally be accompanied by the authorisations or
delegations which will allow officers to give effect to these policies.
Right to Information and Privacy Guidelines 8
It is important that you follow these internal policies and/or agency-specific
legislative requirements to give people access to information and be aware of
your authorisations or delegations.
1.2 Access to documents under the Right to Information Act 2009
The Right to Information Act 2009 (RTI Act) creates a legal right to apply to
access agency documents. Anyone can apply for any document and the RTI
Act does no limit what they can do with documents they receive; there are
application fees and processing charges for RTI applications. However,
applying for access under the RTI Act is intended to be a last resort; where
possible and permissible, information should be provided administratively to
members of the public.
What is a document?
A document can be hardcopy or electronic. It includes paper or any other
material on which there is writing or marks, figures, symbols or perforations
which have meaning to someone qualified to interpret them. It also includes
any disc, tape or other article or material from which sounds, images, writing
or messages can be produced or reproduced.6
How is a decision made?
Each agency has an RTI decision maker who will consider each application
for access to documents. The RTI Act requires a pro disclosure bias when
considering each application. In fact all documents are open to the public
unless there is a really good reason for them not to be. There are time limits
and decision making requirements which they must follow when making
decisions.
Decision makers are required to be independent; directing a decision maker
to make a decision they do not believe should be made is an offence.
Decision makers are required to read or look at every document your agency
holds which is within the scope of what an RTI applicant has asked for.
This means that your agency’s RTI decision maker may ask you to provide
them with documents. It is important that you do so as quickly as possible, as
there are strict time limits in the RTI Act for making decisions. It is also
critical in responding to the request that you conduct all appropriate searches
of hard copy and electronic files to locate the requested documents and
provide the documents to the decision maker, even if you do not want the
documents looked at or disclosed.
If you do not locate all the documents and provide them to the decision
maker, it is possible you and/or your CEO may be called to a public hearing
6 Schedule 1, Acts Interpretation Act 1954.
Right to Information and Privacy Guidelines 9
before the Information Commissioner to explain why you did not locate and
hand the documents over.
If there are issues or sensitivities around a document which might not be
obvious or you have concerns about the release of the documents, it is a
good idea to explain these matters to the decision maker when you send
them the documents. When making their decision the decision maker may
also need to ask you questions about the documents, particularly if they
include technical information. There are factors which are not relevant to
making a decision to release information including that the release of the
information might embarrass the government.
Will access ever be refused?
Decision makers are able to refuse access to exempt information and to
contrary to the public interest information.
Exempt information includes Cabinet information, information which is subject
to legal professional privilege and information which would endanger a
current investigation. A full list of exemption provisions is contained in
Schedule 3 of the RTI Act.
Contrary to the public interest information is information which—based on the
lists of public interest factors in Schedule 4 of the RTI Act—it would be
contrary to the public interest to release. There are factors which favour
disclosure, for example that disclosure will contribute to environmental
protection, and factors which favour withholding the information, such as the
protection of public safety. Decision makers must have a pro-disclosure bias
when considering these factors and balance them to reach a decision.
It is important to note that even where a document consists of exempt or
contrary to the public interest information the RTI Act gives the decision
maker the discretion to release the document to the applicant.
For more information see the Office of the Information Commissioner’s
Guidelines on the RTI Act at www.oic.qld.gov.au.
1.3 Publication Schemes
The RTI Act requires agencies to have a Publication Scheme. It also requires
agencies to comply with the Ministerial Guidelines which set out how a
Publication Scheme is to be organised.
Publication Schemes are generally available on an agency’s website and
contain information about the agency divided into seven broad classes of
information:
Right to Information and Privacy Guidelines 10
1. About Us (Who we are and what we do): Agency information, location
and contacts, constitutional and legal governance.
2. Our Services (The services we offer): A description of the services
offered by the agency, including advice and guidance, booklets and
leaflets, transactions and media releases.
3. Our Finances (What we spend and how we spend it): Financial
information relating to projected and actual income and expenditure,
tendering, procurement and contracts.
4. Our Priorities (What our priorities are and how we are doing): Strategy
and performance information, plans assessments, inspections and
reviews.
5. Our Decisions (How we make decisions): Policy proposals and
decisions. Decision making processes, internal criteria and
procedures, consultations.
6. Our Policies (Our policies and procedures): Current written protocols
for delivering our functions and responsibilities.
7. Our Lists (Lists and registers): Information held in registers required
by law and other lists and registers relating to the functions of the
agency.
The information to be included in a Publication Scheme should be significant,
for example key policy documents; appropriate, having regard to existing
legislation, privacy principles7 and security issues; and accurate. All policies
are required by section 20 of the RTI Act to be made publicly available and
the Publication Scheme is a one stop shop for that purpose.
Each agency has its own procedures in place for keeping its Publication
Scheme updated; depending on your agency’s arrangements, you may be
involved in selecting or reviewing information for the Publication Scheme. It
is important that the Publication Scheme’s information is kept up to date and
relevant. If you are aware of a policy that is not in the Publication Scheme,
let the person responsible for the Scheme know.
For more information see the Office of the Information Commissioner
Guidelines on Publication Schemes at www.oic.qld.gov.au.
7 The obligations in Chapter 2 of the IP Act. 11
Right to Information and Privacy Guidelines
1.4 Access to documents under the Information Privacy Act 2009
Chapter 3 of the Information Privacy Act 2009 (IP Act) creates the legal right
for an individual to apply for access to any document of an agency that
contains their personal information. There are generally no fees payable for
an IP Act application, although there may be charges for access to paper
documents, whereas there are application, processing and access fees
payable under the RTI Act.
IP Act access decisions are made in the same way as decisions under the
RTI Act, discussed above, and access may be refused on the same grounds.
Chapter 3 of the IP Act also allows an individual to apply to have their
personal information amended if they believe it is out of date, inaccurate,
incomplete or misleading. There is no charge for this.
For more information see the Office of the Information Commissioner IP
Act Guidelines at www.oic.qld.gov.au.
1.5 State archives and the Public Records Act 2002
A public record is any form of recorded information, whether received or
created, that provides evidence of the decisions made and actions taken by a
public authority while it undertakes its business functions8.
All public authorities have a responsibility to make and keep full and accurate
records of their activities; to follow relevant policy, standards and guidelines
made by the State Archivist; and to ensure the safe custody and preservation
of its public records regardless or the medium or technology used to create or
maintain them.
When permanent records are no longer required for official purposes public
authorities can contact Queensland State Archives (QSA) to arrange for
transfer of the records to QSA. A ‘permanent public record’ is one
designated as permanent under the appropriate Retention and Disposal
Schedule.
Retention and Disposal Schedules
A Retention and Disposal Schedule is a legal way to authorise the destruction
or transfer of public records. Retention and Disposal Schedules:
describe the type of business a public authority performs
identifies the records produced as a result of that business; and
specifies how long each record must be kept.
8 Section 6, Public Records Act 2002. 12
Right to Information and Privacy Guidelines
Public Authorities will generally have two Retention and Disposal Schedules
with which to comply:
1. A comprehensive Retention and Disposal Schedule developed by the
authority and approved by the State Archivist which covers its core
business records or a sector wide Retention and Disposal Schedule
approved by the State Archivist for use by a specific type of
authorities (for example Local Governments).
2. The General Retention and Disposal Schedule for Administrative
Records which applies to administrative records common to all public
authorities.
It is important to ensure that you are familiar with the sections of the
Retention and Disposal Schedule which cover the kinds of records you deal
with. It is an offence to improperly dispose of a public record.9
For more information see Information Standard 31: Retention and
Disposal of Public Records and Information Standard 40:
Recordkeeping.
Restricted Access Period
Public records held by the State Archivist are to be made available to the
public unless they are still in the restricted access period. Access to records
in QSA custody subject to the restricted access period will generally be given
under an RTI or IP Act application made to the public authority responsible
for the record or with that authority’s written permission. The restricted
access period is calculated from the date of last action on the record.
The restricted access period is10:
For Ministerial records, records of a Parliamentary Secretary or
records classified by the public authority as containing Executive
Council material (as defined in the RTI Act), the restricted access
period is thirty years from the date of last action on the record.
For records classified by a public authority as containing Cabinet
information (as defined in Schedule 3, section 2 of the RTI Act), the
restricted access period is ten years from the date of last action on the
record.
If records contain personal affairs information (essentially, information
about the private lives of individuals), the restricted access period may
be extended by notice from the State Archivist or the responsible
public authority to 100 years from the date of last action on the record.
9 Section 13, Public Records Act 2002
10 Section 16, Public Records Act 2002.
Right to Information and Privacy Guidelines 13
For more information see the Queensland State Archives’ resources
available at
www.archives.qld.gov.au.
1.6 The Queensland Ombudsman
The Ombudsman’s role includes the investigation of an agency’s
administrative actions—whether on referral from the Legislative Assembly, in
response to a complaint, or on his or her own motion—and includes making
recommendations to address the agency’s improper administrative actions or
improve the agency’s administrative practices and procedures.
This role includes the power to require an agency to produce a document or
give information relevant to, or reasonably required for, the investigation. The
Ombudsman also has the power to require a person to attend before the
Ombudsman. Unless the person has a reasonable excuse, failure to comply
with the Ombudsman’s requirement is an offence. No obligation to maintain
secrecy or privilege applies to the giving of information to the Ombudsman.
If the agency does not provide the information, a Magistrates Court can issue
a subpoena requiring the agency to provide it. The Ombudsman also has the
power to enter any place occupied by the agency, as long as notice is given
to the chief executive, and take extracts from or copy documents located at
that place.
For more information see the Queensland Ombudsman webpage at
www.ombudsman.qld.gov.au.
1.7 The Auditor-General and the Queensland Audit Office
The Auditor-General, with the assistance of the Queensland Audit Office, is
responsible for the auditing of a number of bodies including departments,
statutory bodies, government owned corporations and local governments.
The Auditor-General reports to the Queensland Parliament.
Under the Auditor-General Act 2009, authorised auditors are entitled to full
and free access to all documents and property of the entity being audited, to
inspect, examine, photograph or film anything, and to take extracts from and
make copies of any documents. 11
An authorised auditor may also, by written notice, require a person to provide
information or documents to the auditor12 or to appear before the auditor to
answer question or produce documents13.
11 Section 46, Auditor-General Act 2009
12 Section 47, Auditor-General Act 2009
13 Section 48, Auditor-General Act 2009
Right to Information and Privacy Guidelines 14
It is a penalty not to comply with a requirement under the Auditor-General Act
2009, to provide false or misleading information or to obstruct an authorised
auditor.
1.8 The Information Commissioner
The Information Commissioner has the power to require information in
relation to external reviews under both the Right to Information Act 2009 (RTI
Act) and the Information Privacy Act 2009 (IP Act) and in relation to privacy
compliance under the IP Act.
External Review under the RTI or IP Act
When dealing with an external review of an agency’s or Minister’s decision on
an access or amendment application, the Information Commissioner is
entitled to full and free access to all relevant documents.
The Information Commissioner also has the power to require the agency or
Minister to:
Provide better reasons for the initial decision.
Provide a transcript of an audio, shorthand or coded document.
Conduct further document searches.
If the Information Commissioner believes a person has information or a
document relevant to an external review, the Commissioner has the power to
require the person to:
Provide the information in writing, signed by the person, or produce the
document to the Commissioner
Attend before the Commissioner to answer questions relevant to the
external review.
Attend before the Commissioner and give evidence under oath or
affirmation.
Secrecy or other non-disclosure obligations, including legal professional
privilege, do not operate to prevent the giving of information to the
Information Commissioner.14
It is an offence to knowingly give the Information Commissioner false or
misleading information or to fail to comply with a notice to give information,
produce documents or attend to give information.15
14 Section 106, RTI Act. 15
15 Section 177 and 178, RTI Act.
Right to Information and Privacy Guidelines
1.9 Documents required for a court proceeding
The rules governing court proceedings include rules relating to the production
of documents and/or information. Generally, these rules allow participants to
require information/documents from government. The rules will vary
depending on the court in which the proceeding is commenced and the type
of action it is. A failure to comply with an order to produce documents could
constitute contempt of court.
It is important to note that even where a person may be able to access
documents through a court process, they remain legally entitled to apply for
access under the RTI Act.
Supreme, District and Magistrates Courts
A party to the proceeding may issue a subpoena requiring a government
agency to produce a document or an item in court. The agency may object to
the subpoena on a number of grounds, including that the information is not
relevant, is subject to legal professional privilege, oppressive or the request is
noncompliant with the rules.16
A party to a civil proceeding can issue a Notice of Non-party Disclosure to
anyone not a party to the proceeding, including a government agency, to
produce a document as long it is relevant, in the agency’s possession or
control, and a document the agency would be required to produce at trial.17
The grounds on which a party can object to production include that the
information is not relevant, the document is subject to legal professional
privilege, or based on the expense and inconvenience of complying with the
notice.
Queensland Civil and Administrative Tribunal
The Tribunal has the power to require an agency, whether as a party to the
proceedings or as a third party, to produce documents.18
Evidence Act 1977
A party to a civil proceeding in any court can apply to a government agency
to produce relevant documents that are in its possession. There are fees
payable by the party for time spent inspecting, and for copying, a document.19
16 Criminal Practice Rules 1999, rules 29-40, Uniform Civil Procedure Rules 1999 (UCPR), rules 414-421.
17 UCPR, rules 242-249
18 Queensland Civil and Administrative Tribunal Act 2009 s57 and s97
19 Evidence Regulation 2007 s6
Right to Information and Privacy Guidelines 16
Justices Act 1886 proceedings
A defendant who has been committed for trial, sentenced, or discharged can
apply (for a fee) for a copy of the complaint, any order, or any documentary
exhibit, apart from a photo. There are a number of documents which may not
be provided to the defendant, including anything which was part of Childrens
Court proceeding, a closed court, or for which an order prohibiting access or
disclosure has been made20.
1.10 Crime And Corruption Commission
Under the Crime and Corruption Act 2001, the Crime and Corruption
Commission (CCC) has a number of powers when conducting investigations
into crimes or corruption.
The CCC can give notice requiring the production of documents or an oral or
written statement, inspect documents or things, seize or take copies of the
documents or things and compel persons to attend and give evidence.
These powers apply to units of public administration21, which include:
the Legislative Assembly and the parliamentary service
the Executive Council
a department
the police service
a local government
a state court; and
non corporate entities established or maintained under an Act that is
funded to any extent by public money or is financially assisted by the
State.
When giving information, a document or a thing to the CCC in response to a
notice, you do not:
contravene an obligation to maintain its secrecy, whether imposed
under an Act or another law
incur any civil liability in relation to the information, document or thing.
A claim of privilege can be made in relation to the information, document or
thing the CCC has requested access to; any such claim must be considered
by the CCC.
For more information see the Crime and Corruption Commission
webpage at www.ccc.qld.gov.au.
20 Justices Act 1886 s154
21 The CCC’s powers extend to other entities, such as corporations, but this guideline only discusses the CCC’s
powers in relation to units of public administration
Right to Information and Privacy Guidelines 17
1.11 The Coroners Act 2003
A Coroner investigating a death has the power to require information or a
document which they believe is relevant to their investigation.22 An Act which
authorises the disclosure of confidential information to a court will also
authorise the disclosure of confidential information to the Coroner.23 The
person who gives confidential information to the Coroner under the Coroners
Act is protected from civil and criminal liability.
For more information see the Coroners Court page on the Queensland
Courts website at www.courts.qld.gov.au/courts/coroners-court.
1.12 Employee records under the Public Service Regulation 2008
The Public Service Regulation 2008 (PSR) gives you the right to access your
employee record. If you are a supervisor or manager, it is important that you
are aware that your officers have this right. Often, the Human Resources
area will manage the actual accessing of the record by the employee.
Section 10(1) of the PSR states that an employee record means any of the
following (as long as they contain information about the employee who wants
to access it):
Report, correspondence item or other documents about the
employee’s work performance, work conduct or work history.
A medical report about the employee.
A written allegation of misconduct by the employee.
Section 10(2) lists what documents do not form part of an employee record.
For example:
A medical report about the employee indicating that disclosure of
information might be prejudicial to the employee’s wellbeing.
An employee assistance provider document.
A Public Interest Disclosure document about the employee.
A document about the employee relating to a suspected criminal
offence or its investigation.
A document to which Legal Professional Privilege applies.
There are circumstances in which an employee will not be given access to
their employee record. The chief executive may refuse access to all or part
of the record if satisfied that access:24
22 Section 16 of the Coroners Act 2003 provides that a failure to provide the Coroner with information or
documents, unless you have a reasonable excuse, is an offence attracting a maximum of 30 penalty units.
23 Section 17, Coroners Act 2003.
24 Section 14(5), PSR.
Right to Information and Privacy Guidelines 18
would be an unreasonable invasion of someone else’s privacy
may cause harm to another person
would be contrary to a law
is information to which access would likely be refused if the employee
made an application for it under the Information Privacy Act 2009 or
the Right to Information Act 2009.
The chief executive may also refuse access to an employee record in full or
in part if he or she reasonably considers the requested action would be likely
to prejudice an existing relevant investigation or inquiry. This ability to refuse
access expires as soon as the potential prejudice is no longer an issue or six
months from when an employee requests access to the record.
1.13 Information Standard 33: Information Access and Use
Information Standard 33 (IS33) sets out the Queensland Government’s
approach to government information. Its principles are that information is to
be provided to the public to the maximum extent possible, free of charge
where possible, and shared between Queensland government agencies and
other governments with transparent conditions of use.
IS33 sets the information sharing policy to which Queensland Government
must adhere. How this policy is implemented will vary from agency to agency,
depending on the sensitivity of the information with which they deal and
agency specific legislation and policies which limit or prohibit the sharing of
information.
For more information see Information Standard 33 on the Queensland
Government Chief Information Office webpage at
http://qgcio.qld.gov.au/qgcio/architectureandstandards/informationstan
dards/current/pages/index.aspx
1.14 Contract Information under the State Procurement Policy
The State Procurement Policy requires affected agencies to publish details of
their contracts on the Queensland Government Chief Procurement Office
eTender website. The details which must be published vary depending on
the value of the contract.
For contracts under ten thousand dollars there is no requirement to publish
information about the contract. Contracts whose value is between ten
thousand dollars and less than ten million dollars must have the following
information published:
Name and address of the agency
Description of the goods or services
Right to Information and Privacy Guidelines 19
Date of award of contract date
Value of the contract or standing offer arrangement
Name and address of the supplier; and
The procurement method used (only for contracts in excess of five
hundred thousand dollars).
For contracts with a value of ten million dollars or more, the above
information must be published, along with the following details:
Identifying details of the contract
Number of offers sought
Evaluation criteria and weightings
Form of contract
Deliverables
Contract milestones; and
Contract performance management.
The State Procurement Policy lists the minimum information which must be
published, but the Contract disclosure guidelines encourage agencies to
consider publishing more information than the minimum where doing so does
is in the public interest.
For more information please see the State Procurement Policy and the
Contract disclosure guidelines available on the Queensland
Government Marketplace website at
https://secure.publicworks.qld.gov.au/etender/index.do
Right to Information and Privacy Guidelines 20
Information Obligations of Public Service
Employees: Part Two
Rules which permit the release of information in
specific circumstances
2.1 Disclosure Logs
2.2 Statements of reasons under the Judicial
Review Act 1991
2.3 Natural Justice
2.4 Common law duty of fidelity
2.5 The Queensland Public Sector Code of
Conduct
2.6 Public Interest Disclosure
2.1 Disclosure Logs
The RTI Act25 provides for agencies to maintain a Disclosure Log. A
Disclosure Log is an online list of documents which have been released
under the RTI Act which may include a link to view or download the
documents. Departments and Ministers have different Disclosure Log
requirements from other agencies.
Departments and Minister must include information about the applicant as
part of their Disclosure Logs and, once documents are accessed by the
applicant, they must be included in the Disclosure Log, subject to required
deletions. Other agencies are not permitted to include details of the applicant
in their Disclosure Log and they are permitted, rather than required, to include
documents in the Disclosure Log after the applicant has accessed them.
The Ministerial Guidelines for the Operations of Publication Schemes and
Disclosure Logs set out specific requirements for all agencies; Section 78B of
the RTI Act sets out the information which must not be included in a
Disclosure Log.
For more information see the Office of the Information Commissioner
Guidelines on Disclosure Logs at www.oic.qld.gov.au.
25 Section 78 for departments and Ministers; Section 78A for all other agencies. 21
Right to Information and Privacy Guidelines
2.2 Statements of reasons under the Judicial Review Act 1991
The Judicial Review Act 1991 (JR Act) allows a person who has been
adversely affected by an administrative decision to require the decision
maker to give them a statement of reasons.26
What is an administrative decision?
An administrative decision is a decision having an administrative character
made, proposed to be made, or required to be made under an enactment.
Most decisions made under an Act will be administrative decisions.
When is a person aggrieved by a decision?
A person is aggrieved by a decision if they are adversely affected over and
above an ordinary member of the public because they had a special interest
in the decision. They do not have to be the recipient of the decision.
What is a Statement of Reasons?
The intention of a statement of reasons is to fully explain the reason why the
decision was made in sufficient detail to allow the person to know if they
should exercise rights of review to challenge the decision. It should set out
findings on questions of fact, a list of evidence relied upon, explain the
conclusions reached, set out the steps followed by the decision maker and
the factors taken into account as well as their importance.
What information can be withheld from a Statement of Reasons?
Personal affairs information and business affairs information may be withheld
from a statement of reasons if it is confidential. Personal affairs information is
information that relates to the private life of an individual, such as family,
health or financial information. Business affairs information is information
which relates to the business affairs of a business or company.
Business or personal affairs information will be confidential if:
It was supplied in confidence and retains its confidential character
Publication would reveal a trade secret
Publication would, or reasonably could, endanger a State or local
government authority’s competitive commercial activities
It was given under a duty imposed by an enactment; or
Providing the information would contravene a legislative duty not
to communicate information of that kind to any person, or to
limited people, or in limited circumstances.
26 Sections 32 and 33 of the Judicial Review Act 1991. 22
Right to Information and Privacy Guidelines
Information may also be withheld from a statement of reasons where the
Attorney-General has issued a certificate stating that disclosure of the
information would be contrary to the public interest because it would disclose
Cabinet or Committee Cabinet information, or for any other specified reason
that would ground a claim for not producing the information in a judicial
proceeding.
How is the information withheld?
If giving the statement without the information would make the statement
false or misleading, the decision maker is not required to provide the
Statement of Reasons. If not, the decision maker may exclude the
information from the Statement of Reasons.
In either circumstance, the person who requested the Statement of Reasons
must be supplied with a certificate setting out that the information is not
included and why and, if the Statement is not being given, the reasons for
that decision. A full record of the reasons for the decision should be held on
the file.
2.3 Natural justice
Natural justice requires decision makers to be impartial and to act fairly.27 The
obligation to accord natural justice is one of the fundamental underpinnings of
government decision making and the failure to accord it is one of the grounds
on which a decision may be overturned on judicial review.
What is Natural Justice?
Natural Justice is the right to be given a fair hearing, to present one’s case
and to have a decision made by an unbiased decision maker.28 It consists of
the hearing rule and the bias rule.
The bias rule requires that a particular decision-maker should not make a
decision where the circumstances would lead to reasonable doubt about their
impartiality.29
The hearing rule provides that there is a common law duty to act fairly in the
making of administrative decisions which affect rights, interests and legitimate
expectations.30
27 Kioa v West (1985) HCA 81 (at 31); 159 CLR 550 (at 584). 23
28 Caxton, The Queensland Law Handbook, edition 12 (glossary, p 1076).
29 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
30 Kioa v West (1985) HCA 81 (at 31); 159 CLR 550 (at 584).
Right to Information and Privacy Guidelines
When do you have to accord natural justice?
Fairness demands that every person has an opportunity to be heard before a
decision maker makes a decision that adversely affects their interests. When
making the decision, a decision maker must consider whether they intend to
rely on material which:
would adversely affect a person’s interests
may affect the outcome of a decision; and
is not known to the person.
In this situation, before the decision is made the decision maker must:
inform the person of the material which is prejudicial to their
interests; and
provide them with an opportunity to address the material, ie give
them a chance to be heard.
How do you accord Natural Justice?
You accord natural justice by ensuring that you give the person an
administrative hearing, which is most often accomplished by an exchange of
letters between the decision maker and the person.
The letters must set out the information on which the decision maker is
intending to rely, subject to any confidentiality or legislative obligations to
withhold it. A person is entitled to know all the details, including:
a description of the possible decision
the information on which any such decision would be based; and
the criteria for making that decision.
It is not necessary to communicate the actual material or evidence; the
substance of it may be summarised and communicated instead. In
exceptional circumstances highly confidential information may not be able to
be disclosed to the person.
The administrative hearing must happen before the decision is made or a
settled view is formed. It is not sufficient to write to the person, informing
them that a decision has been made, and inviting them to provide additional
information.
The person must be given a reasonable opportunity to respond, based on the
complexity of the material and the urgency of the decision. When considering
the material and the response, the decision maker must be impartial and give
the submission genuine consideration.
Right to Information and Privacy Guidelines 24
2.4 Common law duty of fidelity
Public Service Employees are employees of the Queensland Government.
The employment relationship carries with it an implied duty to serve the
employer with good faith and fidelity during the currency of your
employment31.
For Public Service Employees, this duty is modified by their duty as a Public
Service Employee, as set out in the Queensland Government Code of
Conduct, the Public Sector Ethics Act 1994 and the Public Service Act 2008
(discussed below). If there are situations which are not covered by these
rules, it may be necessary to consider the duties of fidelity and loyalty.
Information should be made available unless the public interest weighs
against it. In this context, the implied duty of fidelity can be expressed as an
obligation not to provide someone with information in order to:
gain an advantage for themselves or for a particular third party; or
cause any third party a disadvantage.32
This means you should not decide to give someone government information
because you stand to gain a benefit or because doing so will have a negative
impact on a third party.
2.5 The Queensland Public Sector Code of Conduct
The Public Sector Ethics Act 1994 sets out the ethics principles which apply
to all public officials of a public service agency. They may also apply to other
people, such as volunteers or contractors of the agency. The ethics
principles are given effect by the Code of Conduct.
The Code of Conduct applies when you are performing official duties,
including when you represent your agency at conferences, training events, on
business trips and attending work related social events.33
It includes the obligation to ensure the appropriate use and disclosure of
official information. It sets out that the public right to know government
information is balanced by necessary protections for certain kinds of
information, including personal information (the management of which is
governed by the Information Privacy Act 2009).
31 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
32 Paul Finn, Integrity in Government, adapting the rules set out by Deane J in Chan v Zacharia (1984) 154 CLR
178
33 Page 2, Queensland Code for the Queensland Public Service.
Right to Information and Privacy Guidelines 25
It also provides that you will:
treat official information with care and use it only for the purpose for
which it was collected or authorised
store official information securely and limit access to people who
require it for legitimate purposes
not use confidential or privileged information to further personal
interests; and
continue to respect the confidentiality of official information once you
leave the public service.
For more information, see Appendix 1: the Ethical Environment of Public
Service agencies
2.6 Public interest disclosures
The Public Interest Disclosure Act 2010 (PID Act) is intended to provide
protections for public service officers who disclose otherwise confidential or
personal information in order to prevent or reveal a wrongdoing.
Information given as part of a properly made public interest disclosure does
not breach any provision of an Act which imposes a duty of confidentiality nor
any oath, rule of law, or agreement which requires the information to be kept
confidential or prohibits it from being disclosed. It also provides a defence of
absolute privilege against defamation proceedings.
The PID Act also prohibits a reprisal of any kind against someone who makes
or intends to make a public interest disclosure, making it an offence. It also
provides that any person caused detriment by a reprisal is entitled to seek
damages in a court of law.
The disclosure must be made to specified people about specified acts or
practices in order to be considered a public interest disclosure and attract the
protections under the PID Act.
Appendix 2 contains a table of the people to whom public interest disclosures
can be made.
When can a public interest disclosure be made?
The disclosure may only be made if:
you honestly believe on reasonable grounds that the information
tends to show the conduct or other matter the subject of the
disclosure; or
the information tends to show the conduct or other matter the subject
of the disclosure, regardless of whether you honestly believe that it
does so.
Right to Information and Privacy Guidelines 26
It is irrelevant whether the conduct or other matter happened before the PID
Act commenced, may be happening when you make the disclosure, or
relates to a future event which may or will happen.
Making a public interest disclosure to a journalist
A journalist is, for the PID Act, a person engaged in the occupation of writing
or editing material intended for publication in the print or electronic news
media.
The circumstances in which you can make a public interest disclosure to a
journalist are very limited. All of the following criteria must be met:
You have first made a public interest disclosure under Chapter 2 of
the PID Act to a proper authority.
The proper authority either:
o decided not to investigate or deal with the disclosure, or
o investigated the disclosure but did not recommend taking any
action in relation to the disclosure; or
o did not, within 6 months of you making the disclosure, notify
you whether or not the disclosure was to be investigated or
dealt with.
For more information on making a PID, see Appendix 2: Public
Interest Disclosures and publications on the Crime and Corruption
Commission Website at: www.ccc.qld.gov.au.
Right to Information and Privacy Guidelines 27
Information Obligations of Public Service
Employees: Part Three
Rules which limit the release of information
3.1 Personal Information
3.2 Confidentiality (contractual and equitable)
3.3 Cabinet Documents and Cabinet Information
3.4 Secrecy provisions
3.5 Information and Security Classification
3.6 Intellectual Property and Information Licensing
3.7 Defamation
3.8 Legal Professional Privilege
3.1. Personal information: when can you disclose it and to whom?
Personal information is any information about an individual whose
identity is obvious from the information or can be worked out by
reference to other information. Personal information must only be
disclosed in accordance with the privacy principles in the Information
Privacy Act 2009 (IP Act).
What is disclosure?
Disclosure under the IP Act means giving personal information to
someone outside the agency who does not already know the information
or is not in a position to find it out.34
If giving the information to someone does not fall within this definition of
disclosure then the disclosure principles in the IP Act do not apply.
When can I disclose personal information?
The IP Act only allows personal information to be disclosed in specific
circumstances. These are set out in Information Privacy Principle 11 and
National Privacy Principle 2 and include:
when the individual has agreed to the disclosure
when the disclosure is authorised or required by law
34 Section 23(3) Information Privacy Act 2009 28
Right to Information and Privacy Guidelines
when the disclosure is necessary to prevent a serious risk to the
safety of an individual or the public; and
when the information is required to assist with a law enforcement
activity.
Even where the IP Act permits information to be disclosed you will need
to have the appropriate agency authorisation to do so.
Other legislation which regulates the disclosure of specific kinds of
information will always override the IP Act; this means that even if IPP 11
or NPP 2 permit information to be disclosed another Act may prohibit the
disclosure.
3.2. Confidentiality (contractual and equitable)
The obligation to keep information confidential arises when confidential
information is given by one person to another person in circumstances
where both people understand that it is to be kept confidential. This may
be an unofficial or informal understanding or a contractual agreement.
The information can be confidential because of a contract (contractual
confidentiality) or it can be confidential because of the nature of the
information and the circumstances of its communication (equitable
confidentiality).
Will confidential information always be confidential?
It is possible to reduce the confidentiality of information by treating it in a
way that is not consistent with its confidential nature. Sometimes the
passage of time or advancements in technology or an industry will act to
remove the confidential nature of information.
When will disclosing information be a breach of confidence?
If information is subject to a contractual obligation of confidentiality, the
terms of the contract will set out the details of the obligation and the
scope of the information covered. Acting contrary to the contractual
terms would generally be a breach of confidence.
If information is not contractually confidential, then the following is
required for a breach of equitable confidentiality:
You must be able to specifically identify the information. This is
necessary so that you can determine that it is not information that
is generally available or common knowledge.
Right to Information and Privacy Guidelines 29
The information must have the ‘necessary quality of confidence’.
It must not be generally available or common knowledge, and it
must have a quality of secrecy or inaccessibility.
The information must not be useless or trivial.
There must be something in the circumstances around its
communication which gives rise to an obligation of confidence,
such as an express agreement or an unspoken understanding
between the giver and the receiver that the information was
confidential.
Giving the information out would be an unauthorised use. This
may be a situation where the person who gave it to the agency
objects to the use, or it is clear from the circumstances that the
use is not in keeping with the confidential nature of the
information or the circumstances in which it was provided.
Exemption under the RTI Act
Confidentiality also forms the basis of an exemption under the RTI Act.35
Information which would found an action for breach of confidence is, with
some exceptions, exempt from release. The exemption will not apply to
information which is contractually confidential unless it also meets the
above criteria for a breach of equitable confidence.
3.3. Cabinet Documents and Cabinet Information
The Constitution of Queensland 2001 states that there must be a
Cabinet, which is collectively responsible to the Parliament; it consists of
the Premier and a number of other Ministers. Because of the sensitive
nature of the matters that go to Cabinet, and the discussions which take
place regarding those matters, there are specific rules which protect
Cabinet Documents.
These rules are set out in the Cabinet Handbook and are reflected in the
exemption provisions of the RTI Act, which provides that Cabinet
Documents are exempt from release.
Cabinet documents
There is no limit on the type of document which can be a Cabinet
document. The only requirement is that it is a document which, if
disclosed, would:
reveal any consideration or deliberation of Cabinet; or
otherwise prejudice the confidentiality of Cabinet considerations,
deliberations or operations.
35 Item 8, Schedule 3.
Right to Information and Privacy Guidelines 30
Premature disclosure of Cabinet information can have serious
ramifications for the State and unlawful disclosure of Cabinet documents
or information may constitute an offence under the Criminal Code 1899
or the Public Sector Ethics Act 1994, or constitute corrupt conduct under
the Crime and Corruption Act 2001.
Disclosure of Cabinet Documents
Only the Cabinet Secretary can authorise the administrative release of
Cabinet Documents. Under the RTI Act36, Cabinet documents are
exempt from release. Some Cabinet documents, however, are
periodically released by Cabinet on the RTI Cabinet website. They can
be searched or browsed by date or by topic.
3.4. Secrecy Provisions
Section 85 of the Criminal Code 1899 relates to official secrets: If you are
a public officer with a duty to keep information or documents secret and
you unlawfully publish or communicate them you commit a
misdemeanour punishable by up to two years imprisonment.
There are also secrecy provisions in other Acts, such as the Aboriginal
and Cultural Heritage Act 2003, the Adoption Act 2009 and the Child
Protection Act 1999.
While these Acts may apply only to certain departments, specific secrecy
provisions within them have been recognised by Parliament in the RTI
Act as grounds to exempt information from release because it would be
contrary to the public interest for this information to be disclosed. These
provisions37 are set out in Appendix 4.
It is important to be aware of any specific secrecy provisions that relate
to your agency or are otherwise relevant to your work.
3.5. Information Security Classification
Information Standard 18: Information Security (IS18) requires agency
information to be classified and controlled in accordance with the
Queensland Government Information Security Classification Framework
(QGISCF). The QGISCF is intended to encourage a consistent approach
to information sharing. It requires all agencies to:
determine the appropriate security classifications for information
apply controls to information which reflects its security
classification ; and
keep a register of security classified information.
36 Item 1 and 2, Schedule 3, RTI Act.
37 Item 12, Schedule 3, RTI Act.
Right to Information and Privacy Guidelines 31
The QGISCF creates classifications for government information.
Information is generally classified into:
PUBLIC
UNCLASSIFIED (optionally X-USE-ONLY)
X-IN-CONFIDENCE, for example cabinet-in-confidence
PROTECTED
HIGHLY PROTECTED
Generally, information classified X-IN-CONFIDENCE and higher should
not be considered for disclosure outside of the RTI process. Note that
while information of this kind may be applied for under the RTI Act it may
be exempt from release.
PUBLIC information can be considered for disclosure in accordance with
your agency’s administrative access scheme and any specific legislative
requirements.
Some UNCLASSIFIED material may be suitable for administrative
release and some may require an RTI application to be made.
For more information please see the Queensland Chief Government
Information Office website at www.qgcio.qld.gov.au
3.6. Intellectual Property and Information Licensing
Copyright
Copyright is a series of rights which may only be exercised by the owner
of copyrighted material; these rights are set out in the Copyright Act 1968
(Cth) and include the right to copy, reproduce or communicate the work
or to publish it online.
Information Standard 46 – Use of Copyright Materials (IS46) sets out the
rules for Queensland Government’s use of copyright materials. IS46
requires each agency to have a copyright policy which you can consult
for more information.
Under section 183(1) of the Copyright Act 1968 (Cth) the use of
copyright material by the State in the service of the State does not
infringe copyright, however:
Only core departments and entities representing, or authorised in
writing by, core departments are able to rely on this exception.
Right to Information and Privacy Guidelines 32
Service of the State will generally include any act done for the
purpose of performing a duty or exercising a power imposed
upon the department by legislation or by prerogative.
It does not include the use of copyrighted material by a State run
educational institution for educational purposes.
There are things the State must do if it relies on this exception:
If the copyright owner has nominated a copyright collection
society the department should pay them ‘equitable remuneration’
for the use of the copyrighted work.
If not, the department must tell the copyright owner about the use
and provide them with as much information as they reasonably
require unless it is not in the public interest to do so.
Information Licensing Framework
The Australian Governments Open Access and Licensing Framework
(AusGOAL) promotes open access to, and re-use of, publicly funded
information. The objectives of AusGOAL are therefore consistent with,
and facilitate the proactive release of, information as required by the RTI
Act.
The framework:
encourages open access to public sector information
enhances the ability to share information within government and
with the community; and
reduces the complexity of information management by adopting
clear processes and a simple licensing system utilising Creative
Commons.
The original framework, QGILF, was adopted in 2009. In 2011, AusGoal
was launched, which builds on QGILF and reflects a move towards
national consistency and a greater emphasis on open access.
For more information see the Queensland Government Chief
Information Office website at www.QGCIO.qld.gov.au and the
AusGOAL website at www.ausgoal.gov.au.
Right to Information and Privacy Guidelines 33
Trade Secrets
A trade secret is a specific sort of confidential information. It will generally
be a formula, practice, process, or design which is secret (or if not secret,
is not generally known or reasonably ascertainable) that allows a
business to obtain or maintain an economic advantage.
Factors that have been accepted as being indicative of information that
constitutes a trade secret include the:
extent to which the information is known outside the business
extent to which the information is known by employees and others
involved in the business
measures taken to guard the secrecy of the information
value of the information to the business and its competitors
amount of effort or money spent by the owner in developing the
information; and
ease or difficulty with which the information could be acquired or
duplicated. 38
Trade secrets should not generally be disclosed to anyone but the owner
of the trade secret unless the law requires it.
If a third party is seeking access to trade secrets held by an agency they
should make an application under the RTI Act. The fact that information
is a trade secret is a factor under the RTI Act to be considered by the
decision maker when making an access decision. 39
3.7 Defamation and defences
Defamation occurs when information is published which means it has
been communicated to a third party. The information will be defamatory if
it could:
injure the reputation of the individual by exposing them to hatred,
contempt or ridicule
cause people to shun or avoid the individual; or
lower the individual’s estimation by right thinking members of
society.
Publication in the context of defamation could include giving documents
or information held by government to a member of the public.
The Defamation Act 2005 contains a number of defences; those which
are relevant to the public service have been listed in Appendix 3. There
38 The American Restatement of the Law of Torts (1939, Volume 4) which was relied on by Gowan J in Ansell
Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd (1967) VR 37.
39 Schedule 4, Part 4, Item 7 of the RTI Act.
Right to Information and Privacy Guidelines 34
are also specific defences in the RTI Act and the IP Act for information
released in the genuine belief that access was required or permitted
under those Acts.
If you have concerns about the material you are considering releasing
you should consult your agency’s legal team.
3.8 Legal professional privilege
Legal professional privilege protects from disclosure communications
between a lawyer and their client made either:
for the dominant purpose of seeking or providing legal advice, or
for use in existing or anticipated legal proceedings.40
The purpose of legal professional privilege is to encourage full and frank
disclosure by clients to their lawyers and thereby serves the public
interest in the administration of justice.41 It applies to communications
between agency officers and both their internal legal officers and external
legal providers.
Waiver of privilege
A document that records the details of privileged communications
between a client and legal adviser is protected from disclosure unless the
privilege has been waived. Privilege can be waived if details of privileged
communications are communicated in a way that is not in keeping with
their confidentiality. It does not require an intention to waive privilege; it
can be waived accidentally.
If privilege is waived, the communication (in any form) is no longer
protected from disclosure. It is easy to waive privilege. Statements such
as ‘we have instructed our lawyers to vigorously defend the claim and
they have advised that the plaintiff’s claim will not succeed’ have been
held by the courts as sufficient.42
You should take great care with documents or information which may be
subject to legal professional privilege, including referring to legal advice or
communications in the reasons for a decision. If you are unsure whether
a document contains privileged information you should consult with your
agency’s legal counsel or the lawyer with whom you have been dealing
before referring to or providing copies of the document.
40 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR
49, 64 [35] (Esso).
41Esso, 64 [35]
42 Switchcorp Pty Ltd v Multiemedia Limited [2005] VSC 425
Right to Information and Privacy Guidelines 35
Index
Administrative access schemes, 7 Criminal Code 1899, 30
Administrative decision, 21 Criminal Practice Rules 1999, 15
Administrative hearing, 23 Defamation, 4, 33, 42, 43
Aggrieved by a decision, 21 Defamation Act 2005, 33
Auditor-General, 3, 13, 14 Disclosure, 4, 17, 20, 25, 27, 30, 44
Ausgoal, 32 Disclosure Log, 20
Australian Governments Open Electronic information, 5
Electronic Transactions
Access and Licensing Framework,
32 (Queensland) Act 2001, 5
Business affairs, 21 Ethics principles, 38
Cabinet, 4, 9, 12, 22, 29, 30, 37 Evidence Act 1977, 15
Cabinet Documents, 29 Evidence Regulation 1993, 15
Cabinet Handbook, 29 Exempt information, 9
Cabinet Information, 4, 29 External Review, 14
Chief Procurement Office, 18 Fidelity, 4, 24
Civil proceeding, 15, 42 Information Standard 44—
Code of Conduct, 6, 24, 39
Confidentiality, 23, 25, 28, 29, 34, 39 Information Asset Custodianship,
Constitution of Queensland 2001, 29 5
Contrary to the public interest Information Commissioner, 1, 2, 3,
information, 9 9, 10, 11, 14, 20
Copyright, 31 Information Licensing, 4, 32
Copyright Act 1968 (Cth), 31 Information Privacy Act 2009, 1, 3,
Coroner, 17 11, 14, 24, 27
Coroners Act 2003, 3, 17 Information Standard 18: Information
Court proceeding, 3, 15 Security, 30
Courts, 15, 17 Information Standard 33, 3, 18
Crime and Corruption Act 2001, 16, Information Standard 46 – Use of
30 Copyright Materials, 31
Crime and Corruption Commission, Intellectual Property, 4, 31
16, 41 Judicial Review Act 1991, 21
Justices Act 1886, 16
Right to Information and Privacy Guidelines 36
Legal professional privilege, 4, 34 Queensland government structure,
Ministerial Guidelines – Operations 37
of Publication Schemes and Queensland Ombudsman, 3, 13
Disclosure Logs, 20 Queensland Public Sector Code of
Natural justice, 22
Information Security Classification, Conduct, 4, 24
30 Queensland State Archives, 11, 13
Notice of Non-party Disclosure, 15 Restricted Access Period, 12
Personal affairs, 21 Retention and Disposal Schedule,
Personal information, 4, 27
Public interest disclosure, 25, 26, 40, 11, 12
41 Right to Information Act 2009, 1, 3,
Public Interest Disclosure Act 2010,
25 5, 8, 14
Public Records Act 2002, 3, 11, 12 Secrecy Provision, 30, 31
Public Sector Ethics Act 1994, 6, 24, State Archives, 11
30, 38 State Procurement Policy, 4, 18, 19
Public Service Regulation 2008, 3, Statement of Reasons, 21, 22
17, 18 Subpoena, 13, 15
Publication Scheme, 9, 10 The Executive, 37
QGILF, 32 The Judiciary, 37
Queensland Audit Office, 3, 13 The Parliament, 37
Queensland Civil and Administrative The Public Service, 38
Tribunal, 15 The use of copyright material, 31
Trade Secrets, 33
Uniform Civil Proceedings Rules
1999, 15
Westminster System, 37
Right to Information and Privacy Guidelines 37
Appendices
Appendix 1: The Ethical Environment of the Public Service Agency
Structure of the Queensland government43
Queensland is a Westminster System of government with a partial separation of
powers. The three branches of government—the Parliament, the Executive and
the Judiciary—are not entirely separate as members of the executive are also
members of the legislative. The roles of each branch are set out below.
The Parliament:
is the assembly of elected representatives (the Legislative Assembly)
holds ultimate authority within the Westminster system of government
is the forum for debating and passing laws which represent the will of the
electorate.
The Executive:
exercises the executive power of the State
formally consists of the Governor and the Ministers—known as the
Executive Council
includes Cabinet, which consists of the Premier and all the Ministers. It is
an essential element of the executive because it “determines government
policy in all areas of public administration and exercises overall control of
government activity44’. The Constitution of Queensland Act 2001 gives
legal effect to Cabinet.
includes the public service, which is divided into departments and other
entities. Each department is responsible for the administration of a series
of Acts and reports to its Minister(s). The Administrative Arrangements
Orders45 set out which departments are responsible for which Acts.
The Judiciary:
is the judicial branch of government consisting of judges, magistrates and
other judicial officers. Its members do not have concurrent roles in either
of the other branches of government.
is responsible for the administration of justice.
interprets the words the Legislative Assembly uses in its legislation to
determine the law.
43 Parliament and Government in Queensland
<http://www.parliament.qld.gov.au/documents/Explore/Education/informationBooks/LevelThreeBook.pdf>
44 Page 125, The Fitzgerald Inquiry Report, Fitzgerald 1989
45 <http://www.qld.gov.au/about/how-government-works/structure-changes/>
Right to Information and Privacy Guidelines 38
The Public Service
The public service is part of the executive branch of government and is subject to
ethical obligations which apply to all of a PSE’s duties and responsibilities.
There are four ethics principles which form the basis of your ethical obligations46.
These obligations apply to your implementation of the Queensland Government’s
information sharing policy and the accompanying legal and policy framework that
governs information held by Queensland government.
1. Integrity and impartiality—you:
are committed to the highest ethical standards
accept and value your duty to provide objective, independent,
apolitical and impartial advice
show respect towards all persons, including employees, clients
and the general public,
acknowledge the primacy of the public interest and undertake to
resolve or manage conflicts in favour of the public interest
are committed to honest, fair and respectful community
engagement.
2. Promoting the public good—you:
accept and value your duty to be responsive to both government
requirements and the public interest
accept and value your duty to engage the community in
developing and effecting official public sector priorities, policies
and decisions
accept and value your duty to effectively, efficiently and
economically manage public resources
value and seek to achieve excellence in service delivery
value and seek to achieve enhanced integration of services to
better service clients.
3. Commitment to the system of government—you:
accept and value your duty to uphold the system of government
and the laws of the State, the Commonwealth and local
government
are committed to professionally and impartially effecting official
public sector priorities, policies and decisions
accept and value your duty to operate within the framework of
Ministerial responsibility to government, the Parliament and the
community.
4. Accountability and transparency—you:
are committed to exercising proper diligence, care and attention;
to effectively and accountably using public resources; and to
46 Public Sector Ethics Act 1994, Part 3
Right to Information and Privacy Guidelines 39
managing information as openly practicable within the legal
framework.
value and seek to achieve high standards of public administration
and to innovate and continuously improve performance
value and seek to operate with a framework of mutual obligation
and shared responsibility between public service agencies and
public officials.
In relation to Accountability and transparency above, section 4.4 of the
Queensland Government Code of Conduct For the Queensland Public Service
includes the following:
4.4 Ensure appropriate use and disclosure of official information
The public has a right to know the information that is created and used by
the government on their behalf. This right is balanced by necessary
protections for certain information, including personal information.
Information privacy legislation protects against the misuse of personal
information and we have an obligation to ensure the lawful collection and
handling of personal information.
In addition, we will:
a. treat official information with care and use it only for the purpose for
which it was collected or authorised
b. store official information securely, and limit access to those persons
requiring it for legitimate purposes, and
c. not use confidential or privileged information to further personal
interests.
We will continue to respect the confidentiality of official information when
we leave public service employment.
Right to Information and Privacy Guidelines 40
Appendix 2: Public Interest Disclosures
About what can a public interest disclosure be made?
Public interest disclosures may be made about:
1. A substantial and specific danger to the health or safety of a person with a
disability.
2. The commission of an offence against a provision of, or the contravention of a
condition imposed by, the Acts listed in Schedule 2 or the PID Act if the
commission or contravention presents a substantial and specific danger to the
environment. The Acts are the:
Aboriginal Cultural Heritage Act 2003
Environmental Protection Act 1994
Fisheries Act 1994
Forestry Act 1959
Greenhouse Gas Storage Act 2009
Land Act 1994
Mineral Resources Act 1992
Nature Conversation Act 1992
Petroleum Act 1923
Petroleum and Gas (Production and Safety) Act 2004
Queensland Heritage Act 1992
Torres Strait Islander Cultural Heritage Act 2003
Transport Operations (Marine Pollution) Act 1995
Water Act 2000
3. The conduct of another person which could, if proved, be corrupt conduct or
maladministration that adversely affects a person’s interest in a substantial and
specific way.
4. A substantial misuse of public resources—this does not include alleged misuse
based on policy disagreements about amounts, purpose or priorities of
expenditure.
5. A substantial and specific danger to public health or safety.
6. A substantial and specific danger to the environment.
Right to Information and Privacy Guidelines 41
To whom may a public interest disclosure be made?
The PID Act sets out the people and entities to which a public interest disclosure can be
made.
Type of disclosure Entity Limitations
If the disclosure does A member of the Only if you honestly believe that the
not relate to a judicial Legislative information relates to:
officer. Assembly the conduct of the entity or any of its
A specific Public
If the disclosure does Sector Entity officer
relate to a judicial anything the entity has the power to
officer The Chief
Judicial Officer investigate or remedy
of the relevant an alleged reprisal against a person
court or tribunal
The Crime and who made a previous disclosure.
Corruption
Commission The information relates to an alleged
reprisal or corrupt conduct.
All other information that could found a
PID.
Only if the information relates to an
alleged reprisal or corrupt conduct.
How can a public interest disclosure be made?
A public interest disclosure may be made anonymously.
If the authority to which the public interest disclosure is being made has a set procedure
for making such disclosure, you should follow it. However, if making the public interest
disclosure to a public sector entity, it may be made as follows.
Type of entity To whom a PID can be made
Any public sector entity Its chief executive officer.
Departments An officer with the function of receiving or taking
action on the type of information being disclosed.
The Minister responsible for its administration.
Any public sector entity with a A member of the governing body.
governing body.
Any person who directly or indirectly supervises
If you are an officer of the entity to or manages you.
which the information is being disclosed
Right to Information and Privacy Guidelines 42
Appendix 3: Defences in the Defamation Act
Absolute privilege: It is a defense to a claim of defamation that information was
published in a situation considered to be an ‘occasion of absolute privilege’.
Occasions of absolute privilege arise:
in the course of the proceedings of a parliamentary body
in the course of an Australian court or tribunal proceeding
in situations deemed to be occasions of absolute privilege in an another
Australian jurisdiction.
Publication of public documents: It is a defense to defamation that information
was contained in a public document or a copy, summary or extract of a
document. This defense can only be defeated if it can be shown that the
information was not published honestly for the information of the public of the
advancement of education.
A public document includes:
any report, record or paper of, or published by, Parliament
any civil proceeding judgment, order or other determination of a court or
arbitral tribunal of any country
any report or document authorised to be published, or required to
presented to or before a parliamentary body, under the law of any
country
any document issued for the information of the public by any level of
government of any country, or its officer, employee or agency
any record or other document kept open for public inspection by, or under
a law of, an Australian jurisdiction, by statutory authority of an Australian
Jurisdiction, or under legislation of an Australian jurisdiction.
any document considered to be a public document in another Australian
jurisdiction.
Fair report of proceedings of public concern: It is a defense that information
was, or was contained in, a fair report of any proceedings of public concern. This
defense will fail if it can be shown that the information was not honestly published
for the information of the public or the advancement of education.
Proceedings of public concern include any public proceedings of:
a parliamentary body
an international organisation, or the governments, of any country
an international conference at which the governments of any countries
are represented
Right to Information and Privacy Guidelines 43
the International Court of Justice, or any other judicial or arbitral tribunal,
for a decision in relation to a dispute between nations or any other
international judicial or arbitral tribunal
a court or arbitral tribunal of any country
an inquiry held under the law of, or under the authority of the government
of, any country
a local government body of any Australian jurisdiction
shareholders of a public company under the Corporations Act held
anywhere in Australia, or
a law reform body of any country.
A full list is contained in Part 4, Division 2 of the Defamation Act 2005.
Right to Information and Privacy Guidelines 44
Appendix 4: Secrecy provisions
Secrecy provisions contained in Schedule 3, item 12 of the RTI Act.
Provision Act Limitations
s. 29(2) Aboriginal Cultural Heritage Act 2003
s. 314 Adoption Act 2009 To the extent they apply to a
s. 53 Auditor General Act 2009 summons or notice that includes
ss. 19, 20 Australian Crime Commission a notation under section 21.
(Queensland) Act 2003
So far as it applies to personal
ss. 186- Child Protection Act 1999 confidential information under
188 that Act.
s. 41 Child Protection (Offender Prohibition
Order) Act 2008
s. 70 Child Protection (Offender Reporting)
Act 2004
s. 239 Financial Intermediaries Act 1996
s. 85 G20 (Safety and Security) 2013
s. 288 Juvenile Justices Act 1992
s. 129 Maintenance Act 1965
s. 65(1) Public Interest Disclosure Act 2010
Part 8 Taxation Administration Act 2001
s. 29(2) Torres Strait Islander Cultural
Heritage Act 2003
Part 9, Transport (Rail Safety) Act 2010
Div 2
ss. 36, 38 Witness Protection Act 2000
Right to Information and Privacy Guidelines 45
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