Right to Information Act 2009

An Act about rights to, and relating to, government and other information

Preamble

Parliament’s reasons for enacting this Act are—

1Parliament recognises that in a free and democratic society—

(a)there should be open discussion of public affairs; and

(b)information in the government’s possession or under the government’s control is a public resource; and

(c)the community should be kept informed of government’s operations, including, in particular, the rules and practice followed by government in its dealings with members of the community; and

(d)openness in government enhances the accountability of government; and

(e)openness in government increases the participation of members of the community in democratic processes leading to better informed decision-making; and

(f)right to information legislation contributes to a healthier representative, democratic government and enhances its practice; and

(g)right to information legislation improves public administration and the quality of government decision-making; and

(h)right to information legislation is only 1 of a number of measures that should be adopted by government to increase the flow of information in the government’s possession or under the government’s control to the community.

2The Government is proposing a new approach to access to information. Government information will be released administratively as a matter of course, unless there is a good reason not to, with applications under this Act being necessary only as a last resort.

3It is Parliament’s intention to emphasise and promote the right to government information. It is also Parliament’s intention to provide a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to provide the information. This Act reflects Parliament’s opinion about making information available and the public interest.

1Short title

This Act may be cited as the Right to Information Act 2009.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Object of Act

(1)The primary object of this Act is to give—

(a)a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access; and

(b)a right of amendment of personal information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to allow the information to be amended.

(1)The primary object of this Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.

(2)The Act must be applied and interpreted to further the primary object.

6Relationship with other Acts prohibiting disclosure of information

This Act overrides the provisions of other Acts prohibiting the disclosure of information (however described).

Notes—

1The Parliament considers that, unless the information is personal information of the applicant, information the disclosure of which is prohibited under a provision of an Act mentioned in schedule 3, section 12 is information the disclosure of which would, on balance, be contrary to the public interest—see section 44(2)(a) and schedule 3, section 12.

2This information is called exempt information and, under section 47(3)(a), an agency or Minister may refuse access to a document to the extent the document comprises exempt information.

3However, an agency or Minister may give access to a document even if this Act provides that access to the document may be refused—see section 48(3).

7Relationship with other Acts regulating disposal of information

This Act does not affect the provisions of other Acts regulating the disposal of information (however described).

Note—

See, for example, the Public Records Act 2002, section 13.

9Act binds State

This Act binds the State.

10Definitions

The dictionary in schedule 5 defines particular words used in this Act.

s 10 amd 2017 No. 17s 258sch 1

11Meaning of document to which this Act does not apply

In this Act, a document to which this Act does not apply means a document mentioned in schedule 1.

12Meaning of document of an agency

In this Act, document, of an agency, means a document, other than a document to which this Act does not apply, in the possession, or under the control, of the agency whether brought into existence or received in the agency, and includes—

(a)a document to which the agency is entitled to access; and

(b)a document in the possession, or under the control, of an officer of the agency in the officer’s official capacity.

13Meaning of document of a Minister

In this Act, document, of a Minister, means a document, other than a document of an agency or a document to which this Act does not apply, in the possession, or under the control, of the Minister that relates to the affairs of an agency, and includes—

(a)a document to which the Minister is entitled to access; and

(b)a document in the possession, or under the control, of a member of the staff of, or a consultant to, the Minister in the person’s capacity as member or consultant.

Note—

Minister is defined to include an Assistant Minister—see schedule 5.

s 13 amd 2012 No. 6s 27sch amdts 2(1)(g), (2); 2017 No. 17s 258sch 1

14Meaning of agency

(1)In this Act, an agency means—

(a)a department; or

(b)a local government; or

(c)a public authority; or

(d)a government owned corporation; or

(e)a subsidiary of a government owned corporation.

(2)However, in this Act, agency does not include an entity to which this Act does not apply.

Note—

See section 17 for entities to which this Act does not apply. Also, under section 26, an application may not be madeSee also sections 26 and 78G for restrictions on making access or amendment applications to the OIC, the information commissioner, the RTI commissioner or the privacy commissioner.

(3)For this Act—

(a)a board, council, committee, subcommittee or other body established by government to help, or to perform functions connected with, an agency is not a separate agency, but is taken to be comprised within the agency; and

(b)without limiting paragraph (a) and to remove any doubt, it is declared that a school council is not a separate agency, but is taken to be comprised within the department in which the Education (General Provisions) Act 2006 is administered; and

(c)a reference to an agency includes a reference to a body that is taken to be comprised within the agency.

(4)In this section—

school council means a school council established under the Education (General Provisions) Act 2006, section 79.

15Local government references for this Act

A reference to local government includes a reference to the Wide Bay Water Corporation.

16Meaning of public authority

(1)In this Act, public authority means any of the following entities—

Note—

Under the Acts Interpretation Act 1954, schedule 1—
entity includes a person and an unincorporated body.

(a)an entity—

(i)established for a public purpose by an Act; or

(ii)established by government under an Act for a public purpose, whether or not the public purpose is stated in the Act;

(b)an entity created by the Governor in Council or a Minister;

(c)another entity declared by regulation to be a public authority for this Act, being an entity— under section 16A;

(i)supported directly or indirectly by government funds or other assistance or over which government is in a position to exercise control; or

(ii)established under an Act; or

(iii)given public functions under an Act;

(ca)a rail government entity under the Transport Infrastructure Act 1994;

(d)subject to subsection (3)subsection (4), a person holding an office established under an Act;

(e)a person holding an appointment—

(i)made by the Governor in Council or Minister otherwise than under an Act; and

(ii)declared by regulation to be an appointment the holder of which is a public authority for this Act.

(2)Despite subsection (1), public authority does not include an entity established by letters patent.

(23)A prescribed entity is not a public authority in relation to documents received, or created, by it in performing a function other than a public function given under an Act.

(34)A person is not a public authority merely because the person holds—

(a)an office the duties of which are performed as duties of employment as an agency’s officer; or

(b)an office of member of a body; or

(c)an office established under an Act for the purposes of an agency.

(45)In this section—

prescribed entity means an entity that is a public authority only because it is given public functions under an Act and is declared by regulationunder section 16A to be a public authority for this Act.

s 16 amd 2013 No. 19s 120sch 1; 2013 No. 39s 110(1)sch 3pt 1

17Meaning of entity to which this Act does not apply

In this Act, an entity to which this Act does not apply means—

(a)an entity mentioned in schedule 2, part 1; or

(b)an entity mentioned in schedule 2, part 2 in relation to the function mentioned in that part.

19Other ways of accessing information

Information may be accessed other than by application under this Act.

Examples—

1A document may be accessed under administrative arrangements made by an agency, including under its publication scheme or disclosure log or under another Act.

2A document may be available for public inspection under the Public Records Act 2002 or in a public library.

3A document may be commercially available.

20Requirement for policy documents to be publicly available

(1)An agency must make copies of each of its policy documents available for inspection and purchase by the public.

(2)However, nothing in this section prevents an agency from deleting exempt information or contrary to public interest information from a copy of a policy document.

(3)A person must not be subjected to any prejudice because of the application of the provisions of an agency’s policy document (other than provisions the agency is permitted to delete from a copy of the document) to any act or omission of the person if, at the time of the act or omission—

(a)the policy document was not available for inspection and purchase; and

(b)the person was not aware of the provisions; and

(c)the person could lawfully have avoided the prejudice had the person been aware of the provisions.

22Disclosure under publication scheme

Without limiting another way an agency may disclose information, it may disclose information under a publication scheme.

23Right to be given access to particular documents

(1)Subject to this Act, a person has a right to be given access under this Act to—

(a)documents of an agency; and

(b)documents of a Minister.

Notes—

1See part 2 for how to exercise this right to access.

2Exclusions of the right are provided for under part 4 (which provides particular circumstances where an entity may refuse to deal with an application) and section 47 (which provides grounds on which an entity may refuse access).

3A limitation on the right is set out in section 73 (which provides that, in particular circumstances, an entity may delete irrelevant information from a document before giving access).

(2)Subsection (1) applies to documents even if they came into existence beforeregardless of when the commencement of this Actdocuments came into existence.

Note—

Section 27 deems an access application to apply only to documents that are, or may be, in existence on the day the application is received.

24Making access application

(1)A person who wishes to be given access to a document of an agency or a document of a Minister under this Act may apply to the agency or Minister for access to the document.

Notes—

1Minister is defined to include an Assistant Minister—see schedule 5.

2Section 25 provides for access applications by parents for children and section 190 clarifies the powers of those acting for others.

3For an application made for a person, the person (and not the agent) is the applicant—see schedule 5, definition applicant. This may be particularly relevant for section 66 (Applicant under financial hardship).

(2)The application must—

(a)be in the approved formwriting and be accompanied by the application fee; and

(b)give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and

(c)state an address to which notices under this Act may be sent to the applicant; and

(d)state whether access to the document is sought for the benefit of, or use of the document by—

(i)the applicant; or

(ii)another entity; and

Example for paragraph (d)(ii)—

A journalist makes an access application for a document for use of the document by an electronic or print media organisation.

(e)if access to the document is sought for the benefit of, or use of the document by, an entity other than the applicant—the name of the other entity.

(d)for an application for access to a document containing personal information of the applicant, be accompanied by—

(i)evidence of identity for the applicant; and

(ii)if an agent is acting for the applicant—evidence of the agent’s authorisation.

Examples of an agent’s authorisation—

•the will or court order appointing the agent to act as the applicant’s guardian

•the client agreement authorising a legal practitioner to act for an applicant

•if the application is made in reliance on section 25, evidence the agent is the child’s parent

(3)The application may, but need not be, in the approved form.

(3)Also, if the application is for access to a document containing personal information of the applicant, the applicant must provide with the application or within 10 business days after making the application—

(a)evidence of identity for the applicant; and

(b)if an agent is acting for the applicant—evidence of the agent’s authorisation and evidence of identity for the agent.

Examples of an agent’s authorisation—

•the will or court order appointing the agent to act as the applicant’s guardian

•the client agreement authorising a legal practitioner to act for an applicant

•if the application is made in reliance on section 25, evidence the agent is the child’s parent

(4)The application fee mentioned in subsection (2)(a) may not be waived.

Note—

However, an application fee must be refunded if a deemed decision is made—see section 46(1).

(5)However, no application fee is payable for an application for access to a document if the only document applied for contains personal information of the applicant.

(6)If an applicant pays an application fee for an application but no application fee is payable for the application under subsection (5), the application fee must be refunded as soon as practicable.

Note—

See also section 46(1) in relation to the refund of an application fee if a deemed decision is made.

(5)In this section—

evidence of identity means the evidence of identity prescribed under a regulation.

s 24 amd 2012 No. 6s 27sch amdts 2(1)(g), (2); 2012 No. 45s 4; 2017 No. 17s 258sch 1

25Making access applications for children

(1)Without limiting the ability of persons to make applications for children, an access application may be made for a child by the child’s parent.

Notes—

1Section 190 clarifies the powers of those acting for others.

2For an application made for a child, the child (and not the parent) is the applicant—see schedule 5, definition applicant. This may be particularly relevant for section 66 (Applicant under financial hardship).

(2)In this section—

child means an individual who is under 18 years.

parent—

1Parent, of a child, is any of the following persons—

(a)the child’s mother;

(b)the child’s father;

(c)a person who exercises parental responsibility for the child, including a person who is granted guardianship of the child under the Child Protection Act 1999 or who otherwise exercises parental responsibility for the child under a decision or order of a federal court or a court of a State.

2However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child.

3A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child.

4A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child.

s 25 amd 2017 No. 17s 258sch 1

26Access application may not be made to commissionerOIC etc.

(1)An access application may not be made or transferred to the OIC, the information commissioner, the RTI commissioner or the privacy commissioner.

(2)Subsection (1) does not apply to an access application made to the OIC by a person who is or was a staff member of the OIC in relation to the person’s personal information.

27Application for documents then existing

(1)An access application is taken only to apply to documents that are, or may be, in existence on the day the application is received.

(2)However, subsection (1) does not prevent an agency or Minister giving access to a document created after the application is received but before notice is given under section 54 (a post-application document).

(3)If the agency or Minister gives the applicant access to a post-application document—

(a)no processing charge or access charge is payable in relation to the document; and

(b)the applicant is not entitled to review under this Act of a decision about the document made in relation to the application.

28Application for metadata

(1)An access application for a document is taken not to include an application for access to metadata about the document unless the access application expressly states that it does.

(2)If an access application for a document expressly states that access to metadata about the document is sought, access to the metadata does not need to be given unless access is reasonably practicable.

(3)In this section—

metadata, about a document, includes information about the document’s content, author, publication date and physical location.

29Application not for backup system documents

(1)An access application, however expressed, for a document does not require an agency or Minister to search for the document from a backup system.

(2)However, subsection (1) does not prevent an agency or Minister searching for a document from a backup system if the agency or Minister considers the search appropriate.

Note—

While a search for a document from a backup system is not generally required before refusing access on the ground that the document is nonexistent or unlocatable, a search is required in the particular circumstances mentioned in section 52(2).

30Decision-maker for application to agency

(1)An access application to an agency must be dealt with for the agency by the agency’s principal officer.

(2)The agency’s principal officer may delegate the power to deal with the application to another officer of the agency.

(3)Also, for an agency other than a local government, the agency’s principal officer may, with the agreement of another agency’s principal officer, delegate the power to deal with the application to the other agency’s principal officer.

(4)The principal officer of the other agency may subdelegate a power delegated to him or herthe principal officer under subsection (3).

Note—

Under the Acts Interpretation Act 1954, section 27A(2), a delegation may be revoked, wholly or partly, by the delegator. Accordingly, a delegation may be revoked before a decision is made in a particular case and the delegator may make the decision.

(5)However—

(a)a principal officer may not, under subsection (2) or (4) delegate the power to deal with the application to the extent it involves—

(i)making a healthcare decision; or

(ii)appointing a healthcare professional under paragraph (b); but

(b)the agency may appoint an appropriately qualified healthcare professional to make a healthcare decision in relation to the application.

(6)In this section—

healthcare decision means a decision about any of the following matters—

(a)whether disclosure to the applicant of relevant healthcare information about the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51;

(b)whether to refuse access under section 47(3)(d);

(c)whether to give access despite being able to refuse access under section 47(3)(d);

(d)whether to give a direction under section 77(2);

(e)whether to approve a healthcare professional under section 77(2).

power to deal, with an access application, includes power to deal with an application for internal review in relation to the access application.

Examples of dealing with an application for internal review—

•making a new decision under section 80(2)

•giving notice under section 83(3)

s 30 amd 2009 No. 48s 228

31Decision-maker for application to Minister

(1)An access application to a Minister may be dealt with by the person the Minister directs, either generally or in a particular case.

(2)However—

(a)the Minister may not direct the person to deal with the application to the extent it involves—

(i)making a healthcare decision; or

(ii)appointing a healthcare professional under paragraph (b); but

(b)the Minister may appoint an appropriately qualified healthcare professional to make a healthcare decision in relation to the application.

(3)In this section—

deal, with an access application, includes deal with an application for internal review in relation to the access application.

Examples of dealing with an application for internal review—

•making a new decision under section 80(2)

•giving notice under section 83(3)

healthcare decision see section 30.

s 31 amd 2009 No. 48s 229

32Application or part of application outside scope of Act

(1)This section applies if—

(a)a person purports to makemakes an application under this Act to an entity for access to a document; and

(b)the entity decides the application is outside the scope of this Act for 1 or more of the following reasons—

(i)the document is a document to which this Act does not apply;

(ii)the entity is an entity to which this Act does not apply;

(iii)the application is made to the information commissioner, RTI commissioner or privacy commissioner.

(b)the entity decides the application or a part of the application is outside the scope of this Act for 1 or more of the following reasons—

(i)the application or part relates to a document that is not a document of an agency or a document of a Minister;

(ii)for the application or part, the entity is an entity to which this Act does not apply;

(iii)the application or part is made to the OIC, the information commissioner, the RTI commissioner or the privacy commissioner in contravention of section 26.

(2)Within 10 business days after the purported application is received, the entity must give prescribed written notice to the applicant of the decision.

(2)Within 25 business days after the application is received, the entity must give prescribed written notice of the decision to the applicant.

Note—

A decision that an application or a part of an application is outside the scope of this Act under any of schedule 2, part 2, items 1 to 8 is a judicial function decision (see schedule 5, definition judicial function decision) which is not a reviewable decision (see schedule 4A, section 1(a)), but may be appealed to the appeal tribunal (see section 119(2)).

(3)If an entity gives prescribed written notice to an applicant of a decision under this section in relation to only part of an application—

(a)the application continues to be an access application excluding the part of the application the subject of the decision; and

(b)the entity must consider the access application as continued under paragraph (a).

33Noncompliance with application requirement

(1)This section applies if—

(a)a person purports to make an access application for a document to an agency or Minister; and

(b)the application does not comply with all relevant application requirements.

(2)The agency or Minister must make reasonable efforts to contact the person within 15 business days after the purported application is received and inform the person how the application does not comply with a relevant application requirement.

(3)An agency or Minister must not refuse to deal with an access application because it does not comply with all relevant application requirements without first giving the applicant a reasonable opportunity to consult with a view to making anany changes or doing any other thing necessary to make the application in a form complying with all relevant application requirements.

Example of doing a thing for subsection (3)—

paying the application fee

(4)The applicant is taken to have made an access application under this Act if and when the application is made in a form complying with all relevant application requirements.

(5)Subsection (4) does not limit section 32.

(6)If, after giving the opportunity mentioned in subsection (3) and any consultation, an agency or Minister decides the application does not comply with all relevant application requirements, the agency or Minister must, within 10 business days after making the decision, give the applicant prescribed written notice of the decision.

(7)The agency or Minister must provide advice and help, to the extent it would be reasonable to expect the agency or Minister to do so, to help the applicant to make an access application in a form complying with all relevant application requirements.

(78)In this section—

relevant application requirement, for an access application, means a matter set out in section 24(2) or (3) that is required for the application.

s 33 amd 2017 No. 17s 224

36Schedule of relevant documents and chargesCharges estimate notice

(1)If a person makes an access application to an agency or Minister, the agency or Minister must—

(a)consider whether a processing charge or access charge is payable in relation to the application; and

(b)before the end of the processing period for the application, give the applicant—

(i)a schedule of relevant documents for the applicant unless the applicant waives the requirement; and

(ii)a charges estimate notice.

(b)if a processing charge or access charge is payable in relation to the application—give the applicant a charges estimate notice before the end of the processing period for the application.

(2)After receiving a charges estimate notice, the applicant may consult with the agency or Minister with a view to narrowing the application to reduce the applicable charges.

(3)If the applicant does not confirm, narrow or withdraw the access application within the prescribed period, the applicant is taken to have withdrawn the applicant’s application at the end of the prescribed period.

(4)If the applicant narrows the access application within the prescribed period, the agency or Minister must, before the end of the processing period for the application, give the applicant a new charges estimate notice.

(5)If the applicant does not confirm or withdraw the access application, as narrowed under subsection (4), within the prescribed period, the applicant is taken to have withdrawn the applicant’s application at the end of the prescribed period.

(5)No more than 2 charges estimate notices may be given in relation to an access application.

(6)Also, subsections (2)Subsections (2) to (4)(5) do not apply if a decision is made, under part 6, division 3, to waive charges.

(7)In this section—

charges estimate notice, for an access application, means a written notice stating the following details—

(a)if a request has been made to an agency or Minister for waiver of charges—the agency’s or Minister’s decision on whether charges will be waived under part 6, division 3;

(b)the agency’s or Minister’s estimate of the amount of any processing charge or access charge;

(c)the basis on which the estimate is made;

(d)the day the decision was made;

(e)the name and designation of the person making the decision;

(f)for a notice given under subsection (1)—the effect of subsections (2) and (3);

(g)for a notice given under subsection (4)—the effect of subsection (5);

(f)the effect of subsections (2) and (3);

(gh)any rights of review under this Act in relation to the decision, the procedures to be followed for exercising the rights and the time within which an application for review must be made.

prescribed period—

1

The prescribed period is 20 business days from the date of the charges estimate notice or any longer period agreed under paragraph 2.

2The applicant and the agency or Minister may agree to extend the prescribed period.

schedule of relevant documents—

1

For an access application, a schedule of relevant documents is a schedule that—

(a)sets out and gives a brief description of the classes of documents relevant to the application in the possession, or under the control, of the agency or Minister; and

(b)sets out the number of documents in each class.

2However, an agency or Minister is not required to include any exempt information or contrary to public interest information in the schedule.

37Disclosure of concern to third party

(1)An agency or Minister may give access to a document that contains information the disclosure of which may reasonably be expected to be of concern to a government, agency or person (the relevant third party) only if the agency or Minister has taken the steps that are reasonably practicable—

(a)to obtain the views of the relevant third party about whether—

(i)the document is a document to which this Act does not apply; or

(ii)the information is exempt information or contrary to public interest information; and

(b)to inform the relevant third party that if access is given to the document because of an access application, access may also be given to the document under a disclosure log.

(2)If disclosure of information may reasonably be expected to be of concern to a person but for the fact that the person is deceased, subsection (1) applies as if the person’s representative were a relevant third party.

(3)If—

(a)the agency or Minister obtains the views of the relevant third party and the relevant third party considers—

(i)the document is a document to which this Act does not apply; or

(ii)the information is exempt information or contrary to public interest information; but

(b)the agency or Minister decides—

(i)the document is a document to which this Act does apply; or

(ii)the information is not exempt information or contrary to public interest information;

the agency or Minister must—

(c)give prescribed written notice of the decision of the agency or Minister to the applicant and the relevant third party; and

(d)defer giving access to the document until after—

(i)the agency or Minister is given written notice by the relevant third party that it does not intend to make any application for review under this Act; or

(ii)if notice is not given under subparagraph (i) and no application for review under this Act is made by the end of the review period—the end of the review period; or

(iii)if an application for review under this Act is made by the end of the review period—the review has ended (whether because of an informal resolution or because of a decision of the entity conducting the review).

(4)The agency or Minister must give the applicant written notice when access is no longer deferred under subsection (3)(d).

(5)In this section—

representative, in relation to a deceased person, means the deceased person’s eligible family member, or, if 2 or more persons qualify as the deceased person’s eligible family member, 1 of those persons.

review period means the period within which any application for review under this Act may be made.

38Transfer of application

(1)In this section—

agency includes a Minister.

(21)An agency to which an application has been made (the original agency) may transfer the application to another agency if—

(a)the document to which the application relates is not in the original agency’s possession but is, to the original agency’s knowledge, in the other agency’s possession; and

(b)the other agency consents to the transfer.

(32)An application that is transferred from 1 agency to another agency is taken to have been made to the other agency.

(43)If— an application is made to an agency for access to 2 or more documents, at least 1 of which is a document mentioned in subsection (1)(a), this section (other than subsections (4) and (5)) applies to each of the documents as if separate applications had been made to the agency for each of the documents.

(a)an application is made to an agency for access to more than 1 document; and

(b)1 or more of the documents is a document mentioned in subsection (2)(a);

this section (other than subsections (5) and (6)) applies to each of the documents as if separate applications had been made to the agency for each of the documents.

(54)If part of an application is transferred under this section and the transferred part of the application relates to a document that isdoes not contain personal information of the applicant, a separate application fee is payable for the transferred part of the application.

(65)However, if the part of the application which is not transferred under this section relates only to a document that iscontains personal information of the applicant, subsection (5)subsection (4) applies only to the extent that there is a transfer to more than 1 agency.

(6)In this section—

agency includes a Minister.

application includes a purported application.

s 38 amd 2017 No. 17s 225

39Pro-disclosure bias in deciding to deal with applications

(1)It is the Parliament’s intention that if an access application is made to an agency or Minister, the agency or Minister should deal with the application unless this would, on balance, be contrary to the public interest.

(2)Sections 40, 41 and 43 state the only circumstances in which the Parliament considers it would, on balance, be contrary to the public interest to deal with an access application.

(3)However, it is the Parliament’s intention that this Act should be administered with a pro-disclosure bias and an agency or Minister may deal with an access application even if this Act provides that the agency or Minister may refuse to deal with the application.

40Exempt information

(1)This section applies if—

(a)an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and

(b)it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information.

(2)The agency or Minister may refuse to deal with the application without having identified any or all of the documents.

41Effect on agency’s or Minister’s functions

(1)An agency or Minister may refuse to deal with an access application or, if the agency or Minister is considering 2 or more access applications by the applicant, all the applications, if the agency or Minister considers the work involved in dealing with the application or all the applications would, if carried out—

(a)substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or

(b)interfere substantially and unreasonably with the performance by the Minister of the Minister’s functions.

(2)Without limiting the matters to which the agency or Minister may have regard in making a decision under subsection (1), the agency or Minister must have regard to the resources that would have to be used—

(a)in identifying, locating or collating any documents in the filing system of the agency or the Minister’s office; or

(b)in deciding whether to give, refuse or defer access to any documents, or to give access to edited copies of any documents, including resources that would have to be used—

(i)in examining any documents; or

(ii)in consulting in relation to the application with a relevant third party under section 37; or

(c)in making a copy, or edited copy, of any documents; or

(d)in notifying any final decision on the application.

(3)In deciding whether to refuse, under subsection (1), to deal with an access application, an agency or Minister must not have regard to—

(a)any reasons the applicant gives for applying for access; or

(b)the agency’s or Minister’s belief about what are the applicant’s reasons for applying for access.

42Prerequisites before refusal because of effect on functions

(1)An agency or Minister may refuse to deal with an access application under section 41 only if—

(a)the agency or Minister has given the applicant a written notice—

(i)stating an intention to refuse to deal with the application; and

(ii)advising that, for the prescribed consultation period for the notice, the applicant may consult with the agency or Minister with a view to making an application in a form that would remove the ground for refusal; and

(iii)stating the effect of subsections (2) to (6); and

(b)the agency or Minister has given the applicant a reasonable opportunity to consult with the agency or Minister; and

(c)the agency or Minister has, as far as is reasonably practicable, given the applicant any information that would help the making of an application in a form that would remove the ground for refusal.

(2)Following any consultation, the applicant may give the agency or Minister written notice either confirming or narrowing the application.

(3)If the application is narrowed, section 41 applies in relation to the changed application but this section does not apply to it.

(4)If the applicant fails to consult after being given notice under subsection (1), the applicant is taken to have withdrawn the application at the end of the prescribed consultation period.

(5)Without limiting subsection (4), the applicant is taken to have failed to consult if, by the end of the prescribed consultation period, the applicant has not given the named officeragency or memberMinister written notice under subsection (2).

(6)In this section—

prescribed consultation period, for a written notice under subsection (1)(a), means—

(a)the period of 10 business days after the date of the notice; or

(b)the longer period agreed by the agency or Minister and the applicant whether before or after the end of the 10 business days mentioned in paragraph (a).

43Previous application for same documents

(1)This section applies if—

(a)an applicant makes an access application, whether under this Act or the Information Privacy Act, to an agency or Minister (the first application); and

(b)the applicant makes another access application under this Act (the later application) to the same agency or Minister for access to 1 or more of the same documents sought under the first application and the later application does not, on its face, disclose any reasonable basis for again seeking access to the document or documents.

(2)For subsection (1)(a), the first application—

(a)does not include an access application taken to have been withdrawn under section 36(3) or (5) or 42(4); and

(b)if an access application has been narrowed under section 36 or 42—means only the access application as changed.

(2)For subsection (1)(a)—

(a)the first application, if made under this Act—

(i)does not include an access application taken to have been withdrawn under section 36(3) or 42(4); and

(ii)if an access application has been narrowed under section 36 or 42—means only the access application as changed; and

(b)the first application, if made under the Information Privacy Act—

(i)does not include an access application taken to have been withdrawn under section 61(4) of that Act; and

(ii)if an access application has been narrowed under section 61 of that Act—means only the access application as changed.

(3)The agency or Minister may refuse to deal with the later application to the extent it is for access to a document or documents sought under the first application if—

(a)when the later application was made, the agency or Minister had not decided the first application; or

(b)in relation to the first application, if made under this Act—

(i)the applicant had been given notice under section 54 that access was to be given to the document sought or to some or all of the documents sought; or

(ii)the agency or Minister had decided that the application was for a document to which this Act does not apply; or

(iii)the agency or Minister had decided the document or documents sought were documents access to which was refused under section 47; or

(iv)the agency or Minister had refused to deal with it under this part; or

(c)in relation to the first application, if made under the Information Privacy Act—

(i)the applicant had been given notice under section 68 of that Act that access was to be given to the document sought or to some or all the documents sought; or

(ii)the agency or Minister had decided that the application was for a document to which chapter 3 of that Act does not apply; or

(iii)the agency or Minister had decided the document or documents sought were documents access to which was refused under section 67 of that Act; or

(iv)the agency or Minister had refused to deal with it under chapter 3, part 4 of that Act; or

(dc)the agency’s or Minister’s decision on the first application—

(i)is the subject of a review and the review is not complete; or

(ii)has been the subject of a completed review (other than an internal review).

(4)For subsection (3), if a document sought under the later application is merely a record of the first application having been made (a record document), access to a record document is taken to have been sought under the first application.

(5)For subsection (3)(d)—

review means—

(a)an internal review under this Act or the Information Privacy Act; or

(b)an external review under this Act or the Information Privacy Act; or

(c)a proceeding under part 11 or under the Information Privacy Act, chapter 3, part 11.

(6)For subsection (3)(d), a review is complete if the review has ended because of an informal resolution or because of a decision of the entity conducting the review.

(5)For subsection (3)(c)—

(a)review means an internal review, an external review or a proceeding under chapter 3B, part 4; and

(b)a review is complete if the review has ended because of an informal resolution or because of a decision of the entity conducting the review.

44Pro-disclosure bias in deciding access to documents

(1)It is the Parliament’s intention that if an access application is made to an agency or Minister for a document, the agency or Minister should decide to give access to the document unless giving access would, on balance, be contrary to the public interest.

(2)The purpose of this part is to help the agency or Minister decide whether giving access would, on balance, be contrary to the public interest by—

(a)setting out in schedule 3 types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest; and

(b)setting out in section 49 the steps, and, in schedule 4, factors, for deciding, for other types of information, whether disclosure would, on balance, be contrary to the public interest.

(3)Also, sections 50 and 51 set out circumstances concerning information about a child and personal healthcare information about an applicant in which the Parliament has stated its intention about what is in the best interests of the child and applicant.

(4)However, it is the Parliament’s intention that this Act should be administered with a pro-disclosure bias and an agency or Minister may give access to a document even if this Act provides that access to the document may be refused.

45Considered decision on access application

If a person makes an access application for a document to an agency or Minister, the agency or Minister must—

(a)after considering the application, make a decision (a considered decision)—

(i)whether access is to be given to the document; and

(ii)if access is to be given—whether any charge must be paid before access is given; and

(b)give the person written notice of the decision under section 54.

46Deemed decision on access application

(1)If an applicant is not given written notice of the decision by the end of the processing period for an access application for a document—

(a)on the last day of the processing period the principal officer of the agency or the Minister is taken to have made a decision (a deemed decision) refusing access to the document; and

(b)theany application fee paid for the application must be refunded as soon as practicable after the end of the processing period.

(2)As soon as practicable after a deemed decision is taken to have been made, the principal officer or Minister must give prescribed written notice of the decision to the applicant.

47Grounds on which access may be refused

(1)This section sets out grounds on which access may be refused.

(2)It is the Parliament’s intention that—

(a)the grounds are to be interpreted narrowly; and

(b)an agency or Minister may give access to a document even if a ground on which access may be refused applies.

(3)On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister—

(a)to the extent the document comprises exempt information under section 48; or

(b)to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49; or

(c)to the extent the document is sought under an application by or for a child and comprises the child’s personal information the disclosure of which would not be in the child’s best interests under section 50; or

(d)to the extent the document comprises an applicant’s relevant healthcare information the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51; or

(e)because the document is nonexistent or unlocatable as mentioned in section 52; or

(f)because other access to the document is available as mentioned in section 53.

Note—

Only a principal officer, Minister or appointed healthcare professional may refuse access to a document of an agency as mentioned in paragraph (d)—see sections 30(5) and 31(2).

(4)In this section—

child means an individual who is under 18 years.

48Exempt information

(1)If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.

(2)Schedule 3 sets out the types of information the disclosure of which the Parliament has considered would, on balance, be contrary to the public interest.

(3)However, despite an agency or Minister being able, under section 47(3)(a), to refuse access to all or part of a document, the agency or Minister may decide to give access.

(4)In this Act—

exempt information means the information that is exempt information under schedule 3.

49Contrary to public interest

(1)If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.

(2)This section sets out the steps, and, in schedule 4, factors, the Parliament considers appropriate for deciding, for types of information (other than exempt information), whether disclosure would, on balance, be contrary to the public interest.

(3)If it is relevant for an agency or Minister to consider whether, on balance, disclosure of information would be contrary to the public interest, the agency or Minister must undertake the following steps—

(a)identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest that applies in relation to the information (an irrelevant factor), including, for example, any factor mentioned in schedule 4, part 1;

(a)identify any factor that is irrelevant to deciding whether, on balance, disclosure of the information would be contrary to the public interest, including any factor mentioned in schedule 4, part 1 that applies in relation to the information (an irrelevant factor);

(b)identify any factor favouring disclosure that applies in relation to the information (a relevant factor favouring disclosure), including, for example, any factor mentioned in schedule 4, part 2;

(c)identify any factor favouring nondisclosure that applies in relation to the information (a relevant factor favouring nondisclosure), including, for example, any factor mentioned in schedule 4, part 3 or 4;

(d)disregard any irrelevant factor;

(e)having regard to subsection (4), balance any relevant factor or factors favouring disclosure against any relevant factor or factors favouring nondisclosure;

(f)decide whether, on balance, disclosure of the information would be contrary to the public interest;

(g)unless, on balance, disclosure of the information would be contrary to the public interest, allow access to the information subject to this Act.

(4)The factors mentioned in schedule 4, part 4 are factors where disclosure could reasonably be expected to cause a public interest harm (harm factors) but the fact that 1 or more of the relevant factors favouring nondisclosure is a harm factor does not of itself mean that, on balance, disclosure of the information would be contrary to the public interest.

(5)However, despite an agency or Minister being able, under section 47(3)(b), to refuse access to all or part of a document, the agency or Minister may decide to give access.

50Contrary to child’s best interests

(1)If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.

(2)Despite schedule 3, section 12(2) and schedule 4, part 2, item 8, in relation to an application by or for a child for access to a document, the Parliament considers it would, on balance, be contrary to the public interest to give access to the document to the extent it comprises personal information of the child if the disclosure of the information would not be in the child’s best interests.

(3)In considering whether disclosure of the information would not be in the best interests of the child, the agency or Minister must, unless the access application was made for the child, have regard to whether the child has the capacity to—

(a)understand the information and the context in which it was recorded; and

(b)make a mature judgment as to what might be in his or herthe child’s best interests.

(4)However, despite an agency or Minister being able, under section 47(3)(c), to refuse access to all or part of a document, the agency or Minister may decide to give access.

(5)In this section—

child means an individual who is under 18 years.

51Contrary to applicant’s best interests—healthcare information

(1)If an access application is made to an agency or Minister for a document, the agency or Minister must decide to give access to the document unless disclosure would, on balance, be contrary to the public interest.

(2)Despite schedule 3, section 12(2) and schedule 4, part 2, item 7, the Parliament considers it would, on balance, be contrary to the public interest to give access to a document to the extent it comprises relevant healthcare information of the applicant if the disclosure of the information might be prejudicial to the physical or mental health or wellbeing of the applicant.

Note—

Only a principal officer, Minister or appointed healthcare professional may decide whether disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant—see sections 30(5) and 31(2).

(3)However, despite an agency or Minister being able, under section 47(3)(d), to refuse access to all or part of a document, the agency or the Minister may decide to give access.

Notes—

1Only a principal officer, Minister or appointed healthcare professional may decide to give access under subsection (3)—see sections 30(5) and 31(2).

2Also, relevant healthcare information to which access is refused may ultimately be disclosed to the applicant by the applicant’s nominated healthcare professional under section 77.

52Document nonexistent or unlocatable

(1)For section 47(3)(e), a document is nonexistent or unlocatable if—

(a)the agency or Minister dealing with the application for access is satisfied the document does not exist; or

Example—

a document that has not been created

(b)the agency or Minister dealing with the application for access is satisfied—

(i)the document has been or should be in the agency’s or Minister’s possession; and

(ii)all reasonable steps have been taken to find the document but the document can not be found.

Examples—

•a document that has been lost

•a document that has been disposed of under an authority given by the State Archivist

Note—

Under the Public Records Act 2002, section 13, it is an offence to dispose of a public record without authority.

(2)Before an agency or Minister may be satisfied under subsection (1)(a) that a prescribed document does not exist, a search for the document from a backup system is required, but only if the agency or Minister considers the document has been kept in, and is retrievable from, the backup system.

(3)Subject to subsection (2), a search for a document from a backup system is not required before the document is nonexistent or unlocatable for section 47(3)(e).

(4)In this section—

prescribed document means a document that—

(a)is a document required to be kept under the Public Records Act 2002; and

(b)is not a document that the agency or Minister could lawfully have disposed of under the Public Records Act 2002.

53Other access available

For section 47(3)(f), other access is available to a document if—

(a)the applicant can reasonably access the document under another Act, or under arrangements made by an agency, whether or not the access is subject to a fee or charge; or

Note—

A document mentioned in an agency’s disclosure log is a document an applicant can reasonably get access to under arrangements made by the agency.

(b)the document is reasonably available for public inspection under the Public Records Act 2002 or in a public library; or

(c)the document—

(i)is stored for preservation or safe custody in the Queensland State Archives; and

(ii)is a copy of a document of an agency; or

(d)the document is commercially available.

54Notification of decision and reasons

(1)An agency or Minister must give a prescribed written notice to an applicant for an access application of—

(a)the decision on the application, including a decision to refuse to deal with the application; and

(b)if the application relates to a document that is not a document in the possession, or under the control, of the agency or Minister—the fact that the document is not a document in the possession, or under the control, of the agency or Minister.

(2)In addition to the details that must be stated in a prescribed written notice, the notice must also specify the following—

(a)if access to a document is to be given—

(i)an itemisation of any processing and access charges payable by the applicant; and

(ii)the period within which the applicant may access the document under section 69 (the access period); and

(iii)details of the publication of the document, or of information about the document, that is required or permitted by section 78 or 78Asection 78A, if the applicant accesses the document within the access period and the document does not contain personal information of the applicant; and

(iv)details of the publication of the document, or of information about the document, that is required or permitted by section 78 or 78Asection 78A, if the applicant fails to access the document within the access period and the document does not contain personal information of the applicant;

(b)if access is to be given to a copy of a document subject to the deletion under section 73 of irrelevant information—the fact that the document is such a copy;

(c)if access is to be given to a copy of a document subject to the deletion under section 74 of exempt information—

(i)the fact that the document is such a copy; and

(ii)the provision of schedule 3 under which the information is exempt information; and

(iii)the reasons for the decision classifying the information as exempt information;

(d)if access is to be given to a copy of a document subject to the deletion under section 75 of contrary to public interest information—

(i)the fact that the document is such a copy; and

(ii)the factors identified as favouring disclosure and the factors identified as favouring nondisclosure under section 49; and

(iii)the reasons for the decision that, on balance, disclosure would be contrary to the public interest under section 49;

(e)if access is to be given to a copy of a document subject to the deletion under section 75A of the personal information of a child—

(i)the fact that the document is such a copy; and

(ii)the reason under section 50 the agency or Minister considers disclosure of the information would not be in the best interests of the child;

(f)if access is to be given to a copy of a document subject to the deletion under section 75B of relevant healthcare information of the applicant—

(i)the fact that the document is such a copy; and

(ii)the reason under section 51 the agency or Minister considers disclosure of the information to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant;

(eg)if access to a document is to be given subject to deferral under section 72—

(i)the reason for the deferral; and

(ii)the day on which the agency or Minister expects the document to be presented or released as mentioned in section 72;

(fh)if dealing with the access application is refused under section 40—

(i)the provision of schedule 3 under which the information in the document is exempt information; and

(ii)the reasons for the decision classifying the information as exempt information;

(gi)if access to a document is refused under section 47(3)—

(i)the processing charges payable by the applicant; and

(ii)the provision of section 47(3) under which access is refused; and

(iii)if access is refused under section 47(3)(a)—

(A)the provision of schedule 3 under which the information in the document is exempt information; and

(B)the reasons for the decision classifying the information as exempt information; and

(iv)if access is refused under section 47(3)(b)—

(A)the factors identified as favouring disclosure and the factors identified as favouring nondisclosure under section 49; and

(B)the reasons for the decision that, on balance, disclosure would be contrary to the public interest under section 49; and

(v)if access is refused under section 47(3)(c)—the reason under section 50 the agency or Minister considers access would not be in the best interests of the child; and

(vi)if access is refused under section 47(3)(d)—the reason under section 51 the agency or Minister considers that the disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant; and

(vii)if access is refused under section 47(3)(e)—the provision of section 52(1) under which the document is nonexistent or unlocatable; and

(viii)if access is refused under section 47(3)(f)—the type of access to the document under section 53 that is available.

(3)An agency or Minister is not required to include any exempt information or contrary to public interest information in the notice.

(4)Subsection (2)(a)(ii) does not apply if the document is given with the notice.

(5)This section does not apply in relation to a deemed decision.

s 54 amd 2012 No. 45s 5

55Information as to existence of particular documents

(1)Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information.

(2)For an access application for a document containing prescribed information, the agency or Minister may give a prescribed written notice that does not include the details mentioned in section 191(a) or (b) but, by way of a decision, states that—

(a)the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or a document of the Minister; but

(b)assuming the existence of the document, it would be a document to which access would be refused under section 47(3) to the extent it comprised prescribed information.

(3)The prescribed written notice may be given in a schedule of relevant documents.

(43)To avoid any doubt, it is declared that a decision that states the matters mentioned in subsection (2) is a decision refusing access to a document under section 47.

Note—

A decision refusing access to a document under section 47 is a reviewable decision—see schedule 5, definition reviewable decisionschedule 4A, paragraph (e)section 1(e).

s 55 amd 2009 No. 48s 230; 2017 No. 17s 258sch 1

56Meaning of processing charge

In this Act, processing charge, in relation to an access application for a document, means the charge prescribed under a regulation for—

(a)searching for or retrieving the document; and

(b)making, or doing things related to making, a decision on the application.

57Meaning of access charge

In this Act, access charge, in relation to an access application for a document, means the charge prescribed under a regulation in relation to giving access to the document.

58Duty in relation to processing charge and access charge

It is the duty of the agency or Minister to minimise any charges payable by an applicant.

59No processing charge for personal information

To remove any doubt, it is declared that no processing charge is payable in relation to a document to the extent the document contains information that iscontaining personal information of the applicant.

s 59 amd 2017 No. 17s 226

60Requirement to pay charges

(1)Before an applicant for an access application for a document is given access to the document, the applicant must pay the applicable processing charge and access charge for the application.

(2)An applicant for an access application for a document must pay the applicable processing charge for the application even if—

(a)access to the document is refused under this Act; or

(b)the applicant does not seek to access the document within the access period mentioned in section 69 after a decision is made to give access.

61Amount of charges

(1)The amount payable for the processing charge for an access application may not be more than the estimated processing charge set out in the final charges estimate notice for the application.

(2)The amount payable for the access charge for an access application may not be more than the estimated access charge set out in the final charges estimate notice for the application.

Note—

Also, if an applicant is given access to a document in a form different to the form of access requested by the applicant, the applicant must not be required to pay a charge that is more than the charge that would have been payable if access had been given in the form requested by the applicant—see section 68(5).

62Refund of excess payment

If an applicant pays an agency or Minister an amount for the processing charge and access charge that is more than the amount of the processing charge and access charge ultimately payable under this Act, the agency or Minister must refund the difference to the applicant.

63Waiver under div 3 only

A processing charge or access charge may be waived only under this division.

64Uneconomical to charge

(1)A processing charge, or access charge, for an access application may be waived if the agency or Minister considers the likely associated costs to the agency or Minister would be more than the likely amount of the charge.

(2)In this section—

associated costs mean the costs of—

(a)estimating and otherwise complying with this Act in relation to the charge; and

(b)receiving payment of the charge.

65Agency or Minister has delayed

A processing charge may be waived under section 93(2).

66Applicant under financial hardship

(1)This section applies if, at any time, an applicant makes a written request to an agency or Minister that the applicable processing charge or access charge for the application be waived.

(2)The agency or Minister must decide to waive any processing charge, or access charge, for the application if—

(a)for an applicant who is an individual—

(i)the request is accompanied by a copy of a concession card; and

(ii)the agency or Minister considers the applicant is the holder of a concession card; and

(iii)the agency or Minister considers the applicant is not making the application for some other person who is seeking to avoid the payment of a charge; or

(b)for an applicant that is a non-profit organisation—there is in effect a decision of the information commissioner that the non-profit organisation has financial hardship status under section 67.

(3)The agency or Minister must give the applicant a prescribed written notice of a decision under subsection (2) before the end of the processing period.

(4)However, subsection (3) does not apply if the agency or Minister has given the applicant a charges estimate notice that includes a decision that charges are not to be waived.

(5)In this section—

concession card means a health care card or pensioner concession card under the Social Security Act 1991 (Cwlth) or a pensioner concession card issued by the department of the Commonwealth in which the Veterans’ Entitlements Act 1986 (Cwlth) is administered.

holder, of a concession card, at a time the concession card is being relied on for a purpose under this Act, means a person who is named on the concession card and would be qualified to be named on the concession card if the concession card were issued at the time the concession card is being relied on.

67Financial hardship status for non-profit organisation

(1)The information commissioner may, on written application by a non-profit organisation, decide whether a non-profit organisation has financial hardship status by considering the nature and size of the organisation’s funding base and the amount of the organisation’s liquid funds.

Example—

The fact an organisation receives significant government funding may indicate its finances are strictly limited.

(2)The commissioner must give a non-profit organisation that has applied for financial hardship status prescribed written notice of the decision.

(3)The commissioner’s decision that a non-profit organisation has financial hardship status has effect for 1 year from the date of the decision.

(4)While there is in effect a decision that a non-profit organisation has financial hardship status—

(a)the non-profit organisation must give the commissioner written notice of any substantial improvement in the organisation’s financial circumstances as soon as practicable after the improvement happens; and

(b)the commissioner may revoke the decision if the commissioner considers that the non-profit organisation’s financial circumstances at any time result in the commissioner considering that the organisation should not have financial hardship status.

(5)If the commissioner revokes a decision that a non-profit organisation has financial hardship status, the commissioner must, as soon as practicable, give the organisation prescribed written notice of the revocation.

(6)If an organisation that has made an access application to an agency or Minister receives a notice under subsection (5) during the processing period for the application, the organisation must immediately advise the agency or Minister that the decision that the organisation has financial hardship status has been revoked.

(7)If the commissioner gives a non-profit organisation written notice of a decision that it is not to be given financial hardship status, the non-profit organisation may not make another application for a decision under subsection (1) unless—

(a)there is a substantial deterioration in its financial circumstances; or

(b)it is more than 1 year since the date of the commissioner’s decision.

68Forms of access

(1)Access to a document may be given to a person in 1 or more of the following forms—

(a)a reasonable opportunity to inspect the document;

(b)providing a copy of the document;

(c)if the document is an article or material from which sounds or visual images are capable of being reproduced—making arrangements for the person to hear the sounds or view the images;

(d)if the document is one—

(i)by which words are recorded in a way in which they are capable of being reproduced in the form of sound; or

(ii)in which words are contained in the form of shorthand writing or in codified form;

providing a written transcript of the words recorded or contained in the document;

(e)if—

(i)the application relates to information that is not contained in a written document in the possession, or under the control, of the agency; and

(ii)the agency could create a written document containing the information using equipment that is usually available to it for retrieving or collating stored information;

providing a written document created using the equipment.

(2)For subsection (1)(a) and (b), the reference to the document includes a reference to a copy of the document from which information has been deleted under sections 73 to 75.75B.

(3)Subject to this section and sections 73 to 7575B, if an applicant has requested access in a particular form, access must be given in that form.

(4)If giving access in the form requested by the applicant—

(a)would interfere unreasonably with the operations of the agency, or the performance by the Minister of the Minister’s functions; or

(b)would be detrimental to the preservation of the document or, having regard to the physical nature of the document, would be inappropriate; or

(c)would involve an infringement of the copyright of a person other than the State;

access in that form may be refused and given in another form.

(5)If an applicant is given access to a document in a form different to the form of access requested by the applicant, the applicant must not be required to pay a charge that is more than the charge that would have been payable if access had been given in the form requested by the applicant.

(6)Access under subsection (1)(a) to a document to which section 181 or 182 applies must be given by affording the applicant a reasonable opportunity to inspect the document on the premises of the Queensland State Archives or public library or in an office of an agency.

(7)If a document is more than 25 years old or in the custody of the Queensland State Archives, the State Archivist may direct that access not be given in 1 or more, but not all, of the forms mentioned in subsection (1) if, in the State Archivist’s opinion, giving access in that form would be detrimental to the document’s preservation or, having regard to the physical nature of the document, would be inappropriate.

(8)This section does not prevent an agency or Minister giving access to a document in another form agreed to by the applicant.

69Time limit for access

(1)This section applies if an applicant for an access application for a document is given access to the document.

(2)The person may access the document—

(a)if the giving of access is deferred under section 37(3)(d) or 72, within—

(i)40 business days after the date of the notice that access is no longer deferred; and

(ii)any additional period allowed by the agency or Minister; or

(b)otherwise, within—

(i)40 business days after the date of the decision to give the person access to the document; and

(ii)any additional period allowed by the agency or Minister.

(3)For subsection (2)(b)(i), the date of the decision to give the person access to the document is—

(a)if the person is given access because of a decision of the agency or Minister—the date of the prescribed written notice; or

(b)if the person is given access because of a decision of the information commissioner, QCAT or a court—the date of the decision; or

(c)if the person is given access because of an informal resolution of an external review—the date of the notice of the commissioner given under section 90(4)(a); or

(d)if the person is given access because of an informal resolution of a proceeding under part 11chapter 3B, part 4—the date of the informal resolution.

(4)If the person does not seek to access the document within the 40 business days, or any additional period allowed by the agency or Minister, the person’s entitlement to access under the application ends.

(5)To remove any doubt, it is declared that subsection (2) does not entitle a person to access a document without paying any processing charge and access charge payable under part 6.

70Precautions

(1)This section applies if—

(a)an access application is made to an agency or Minister for a document containing personal information of a person (the first person); and

(b)disclosure of the information would, on balance, be contrary to the public interest under section 49, or the information would be exempt information, if the application were made by a person other than the first person or the first person’s agent.

(2)The agency or Minister must ensure, by the adoption of appropriate procedures, that any information intended for the applicant is received—

(a)if the application is made by the applicant’s agent—only by the applicant or the agent; or

(b)in any other case—only by the applicant.

s 70 amd 2017 No. 17s 227

71Precautions for children

(1)This section applies if—

(a)an access application states that it is made for a child by the child’s parent; and

(b)the application is for documents containing the child’s personal information.

(2)The agency or Minister must ensure, by the adoption of appropriate procedures, that any information intended for the child is received only by the parent.

(3)In this section—

child see section 25.

parent see section 25.

72Deferral of access

(1)An agency or Minister may defer giving access to a document for a reasonable period if the document was prepared—

(a)for presentation to the Assembly or a committee of the Assembly; or

(b)for release to the media; or

(c)solely for inclusion, in the same or an amended form, in a document to be prepared for a purpose mentioned in paragraph (a) or (b);

and the document is yet to be presented or released, or included in a document to be presented or released, as the case may be.

(2)The agency or Minister must give the applicant written notice when access is no longer deferred under subsection (1).

73Deletion of irrelevant information

(1)This section applies if giving access to a document will disclose to the applicant information the agency or Minister reasonably considers is not relevant to the access application for the document.

(2)The agency or Minister may delete the irrelevant information from a copy of the document and give access to the document by giving access to a copy of the document with the irrelevant information deleted.

(3)However, the agency or Minister may give access to the document under subsection (2) only if the agency or Minister considers it is reasonably practicable to give access to the copy.

s 73 amd 2017 No. 17s 228

74Deletion of exempt information

(1)This section applies if—

(a)an access application is made for a document containing exempt information; and

(b)it is practicable to give access to a copy of the document from which the exempt information has been deleted.

(2)The agency or Minister must give access to a copy of the document from which the exempt information has been deleted.

(3)This section is subject to section 55.

s 74 sub 2017 No. 17s 229

75Deletion of contrary to public interest information

(1)This section applies if—

(a)an access application is made for a document containing contrary to public interest information; and

(b)it is practicable to give access to a copy of the document from which the contrary to public interest information has been deleted.

(2)The agency or Minister must give access to a copy of the document from which the contrary to public interest information has been deleted.

(3)This section is subject to section 55.

s 75 sub 2017 No. 17s 229

75ADeletion of contrary to child’s best interests information

(1)This section applies if—

(a)an access application is made by or for a child for a document containing personal information of the child, the disclosure of which would not be in the child’s best interests under section 50; and

(b)it is practicable to give access to a copy of the document from which the personal information has been deleted.

(2)The agency or Minister must give access to a copy of the document from which the personal information has been deleted.

(3)This section is subject to section 55.

s 75A ins 2017 No. 17s 229

75BDeletion of contrary to applicant’s best interests information—relevant healthcare information

(1)This section applies if—

(a)an access application is made for a document containing relevant healthcare information of the applicant, the disclosure of which might be prejudicial to the physical or mental health or wellbeing of the applicant under section 51; and

(b)it is practicable to give access to a copy of the document from which the relevant healthcare information has been deleted.

(2)The agency or Minister must give access to a copy of the document from which the relevant healthcare information has been deleted.

(3)This section is subject to section 55.

s 75B ins 2017 No. 17s 229

76Giving summary of personal information to applicant or intermediary

(1)This section applies if under this Act, other than under section 47(3)(d), an agency or a Minister refuses an applicant access to a document to the extent it comprises personal information of the applicant.

(2)Despite the refusal mentioned in subsection (1), the agency or Minister must consider whether it is consistent with the primary object of this Act to give the applicant, or a person nominated by the applicant and approved by the agency or Minister (an intermediary), a summary of the personal information on conditions of use or disclosure agreed between the agency or Minister and the intermediary, or between the agency or Minister, the intermediary and the applicant.

(3)However—

(a)if a summary of information under subsection (2) includes information given by a person (the information giver), other than the applicant, who gave the information on a confidential basis—the summary must not be given to the applicant or intermediary without consultation with, and the agreement of, the information giver; and

(b)if a summary of information under subsection (2) includes personal information of a person other than the applicant—the summary must not be given to the applicant or intermediary without consultation with, and the agreement of, the other person.

(4)Subsection (3) applies whether or not the summary is capable of revealing the identity of the information giver or other person.

77Giving relevant healthcare information to applicant’s nominated healthcare professional

(1)This section applies if an agency or Minister refuses access to a document under section 47(3)(d).

(2)Despite the refusal, the agency or Minister may direct that access to the document is to be given instead to an appropriately qualified healthcare professional nominated by the applicant and approved by the agency or Minister.

Note—

Only a principal officer, Minister or appointed healthcare professional may give this direction or approve the applicant’s nominated healthcare professional—see sections 30(5) and 31(2).

(3)The nominated and approved healthcare professional may decide—

(a)whether or not to disclose all or part of the relevant healthcare information contained in the document to the applicant; and

(b)the way in which to disclose the information to the applicant.

78ADisclosure logs—other agencies

(1)If an agency or Minister makes a decision in relation to an access application to give access to a document that does not contain personal information of the applicant and the applicant accesses the document within the access period—

(a)a copy of the document may be included in a disclosure log, if this is reasonably practicable; or

(b)otherwise—details identifying the document and information about the way in which the document may be accessed may be included in a disclosure log.

(2)A person may access a document the details of which are included in a disclosure log under subsection (1)(b) for no charge and in the way mentioned in the disclosure log.

(3)If an agency or Minister decides to give access to a document that does not contain personal information of the applicant and the applicant fails to access the document within the access period, details identifying the document, and information about the way in which the document may be accessed and any applicable charge, may be included in a disclosure log.

(4)A person may access a document the details of which are included in a disclosure log under subsection (3) on payment of the applicable charge, and in the way mentioned in the disclosure log.

(5)After a person accesses a document under subsection (4)—

(a)no further charge is payable for access to the document by any person; and

(b)a copy of the document may be included in a disclosure log.

(6)However, the inclusion of a document or information in a disclosure log under this section is subject to section 78B(2)(1).

(7)In this section—

agency does not include a department or a prescribed entity under section 16.

s 78A ins 2012 No. 45s 6

78BRequirements about disclosure logs

(1)An agency maintaining a disclosure log must ensure the disclosure log complies with any guidelines published by the Minister on the Minister’s website (to the extent the guidelines are consistent with this Act).

(21)Without limiting subsection (1), an agencyAn agency or Minister must delete from any document or information included in a disclosure log under section 78 or 78A,section 78A any information (including an individual’s name)—

(a)the publication of which is prevented by law; or

(b)that may be defamatory; or

(c)that, if included in the disclosure log, would unreasonably invade an individual’s privacy; or

(d)that is, or allows to be ascertained, information—

(i)of a confidential nature that was communicated in confidence by a person other than the agency or Minister; or

(ii)that is protected from disclosure under a contract; or

(e)that, if included the disclosure log, would cause substantial harm to an entity.

(32)In this section—

agency includes a Minister but does not include a prescribed entity under section 16.

s 78B ins 2012 No. 45s 6

123Information Commissioner and office of the information commissioner

(1)There is to be an Information Commissioner.

(2)The commissioner is an officer of the Parliament.

(3)The Office of the Information Commissioner established under the repealed Freedom of Information Act 1992 is continued in existence.

(4)The OIC consists of the commissioner and the staff of the office.

124Office of the information commissioner is a statutory body

(1)The OIC is a statutory body for the Financial Accountability Act 2009 and the Statutory Bodies Financial Arrangements Act 1982.

(2)The Statutory Bodies Financial Arrangements Act 1982, part 2B sets out the way in which the OIC’s powers under this Act are affected by the Statutory Bodies Financial Arrangements Act 1982.

125General power

The information commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of the commissioner’s functions under an Act.

126Information commissioner not subject to direction

(1)The information commissioner is not subject to direction by any person about—

(a)the way in which the commissioner’s powers are to be exercised in the performance of a function under section 128, 129, 130 or 131; or

(b)the priority to be given to investigations and reviews under this Act.

(2)Subsection (1) has effect despite the Public Sector Act 2022.

s 126 amd 2022 No. 34s 365sch 3

127Control of the office of the information commissioner

The information commissioner controls the OIC.

128Support functions

(1)The functions of the information commissioner include giving information and help to agencies and members of the public on matters relevant to this Act, in particular, by—

(a)giving guidance on the interpretation and administration of this Act; and

(b)giving information and help to agencies, applicants and third parties at any stage of an access application; and

(c)promoting greater awareness of the operation of this Act in the community and within government, including by providing training and educative programs; and

(d)monitoring the way the public interest test set out in section 49 is applied by agencies and on external review, consulting experts on its application and keeping agencies informed; and

(e)commissioning external research, and consulting experts on the design of surveys, to monitor whether this Act and its administration are achieving this Act’s stated objectives; and

(f)commenting on any issues relating to the administration of right to information or privacy in the public sector environment; and

(g)without limiting paragraph (f), identifying and commenting on legislative and administrative changes that would improve the administration of this Act.

(2)In this section—

agency includes a Minister.

s 128 amd 2017 No. 17s 235

129Decision-making functions

The functions of the information commissioner include—

(a)deciding applications for extensions of time under schedule 4, part 4, item 1; and

(b)deciding applications from non-profit organisations for financial hardship status under section 67; and

(c)making, varying or revoking declarations under section 114 or 115.

130External review functions

(1)The functions of the information commissioner include investigating and reviewing decisions of agencies and Ministers under chapter 3chapter 3B, part 9part 2.

(2)The functions of the commissioner also include investigating and reviewing whether, in relation to the decisions, agencies and Ministers have taken reasonable steps to identify and locate documents applied for by applicants.

131Performance monitoring functions

(1)The functions of the information commissioner include reviewing and reporting on agencies in relation to the operation of this Act and the Information Privacy Act, chapter 3, including by—

(a)monitoring, auditing and reporting on agencies’ compliance with this Act and the Information Privacy Act, chapter 3; and

(b)advising the parliamentary committee of the statistical information (including statistical information about giving access to information other than on an access application) agencies are to give the commissioner for reports under this section; and

(c)publishing performance standards and measures for use in reports under this section.

(2)The commissioner must, as soon as practicable after finishing a review, give a report about the outcome of the review to the parliamentary committee.

(3)In this section—

agency includes a Minister.

132Power to issue guidelines

(1)The information commissioner also has power to issue a guideline about a matter for or in connection with any of the commissioner’s functions.

(2)The commissioner must publish the guideline on the commissioner’s website.

(3)Without limiting subsection (1), the commissioner may issue a guideline about any of the following matters—

(a)the interpretation and administration of this Act;

(b)the application of the public interest test set out in section 49, including examples of the way it should be and has been applied;

(c)the production and management of schedules of relevant documents, particularly to achieve consistency;

(dc)the process for external reviews, including appropriate timeframes for completion of external reviews;

(ed)when it is appropriate to apply for a declaration that a person is a vexatious applicant;

(fe)procedural, technical and sector specific issues in relation to this Act, including documents mentioned in schedule 1 and entities mentioned in schedule 2;

(gf)what agencies or Ministers should include in reasons for a decision;

(hg)best practice for agencies to improve service to those seeking to access information;

(ih)best practice for publication schemes;

(ji)best practice for administrative access schemes, including disclosure logs.

133Budget and performance

(1)For each financial year, the information commissioner must develop, adopt and submit to the Minister a budget for the OIC not later than the day the Minister directs.

(2)A budget has no effect until approved by the Minister.

(3)During a financial year the commissioner may develop, adopt and submit to the Minister amendments to the OIC’s budget.

(4)An amendment has no effect until approved by the Minister.

(5)The OIC must comply with its budget.

(6)This section does not require the commissioner to give the Minister any details that would, if given, prejudice a current investigation or review by the commissioner.

134Appointment

(1)The information commissioner is appointed by the Governor in Council.

(2)The commissioner is appointed under this Act and not under the Public Sector Act 2022.

s 134 amd 2022 No. 34s 365sch 3

135Procedure before appointment

(1)A person may be appointed as information commissioner only if—

(a)the Minister has placed press advertisements nationally calling for applications from suitably qualified persons to be considered for appointment; and

(b)the Minister has consulted with the parliamentary committee about—

(i)the process of selection for appointment; and

(ii)the appointment of the person as commissioner.

(2)Subsection (1)(a) and (b)(i) does not apply to the reappointment of a person as information commissioner.

136Term of appointment

(1)The information commissioner holds office for the term, of not more than 5 years, stated in the instrument of appointment.

(2)However, a person being reappointed as information commissioner can not be reappointed for a term that would result in the person holding office as information commissioner for more than 10 years continuously.

137Remuneration and conditions

(1)The information commissioner must be paid remuneration and other allowances decided by the Governor in Council.

(2)The remuneration paid to the commissioner must not be reduced during the commissioner’s term of office without the commissioner’s written consent.

(3)In relation to matters not provided for by this Act, the commissioner holds office on the terms and conditions decided by the Governor in Council.

138Leave of absence

The information commissioner is entitled to the leave of absence decided by the Governor in Council.

s 138 sub 2011 No. 45s 245

139Preservation of rights if public service officer appointed

(1)A public service officer who is appointed to the office of information commissioner or who is appointed to act in the office is entitled to retain all existing and accruing rights as if service in the office were a continuation of service as a public service officer.

(2)If the person stops holding the office for a reason other than misconduct, the person is entitled to be employed as a public service officer.

(3)The person must be employed on the classification level and remuneration that the Public Sector Commission or another entity prescribed under a regulation considers the person would have attained in the ordinary course of progression if the person had continued in employment as a public service officer.

s 139 amd 2022 No. 34s 365sch 3

140Oath before performing duties

(1)Before performing the duties of office, the information commissioner must make an oath or affirmation to the effect that he or shethey will faithfully and impartially perform the duties of the office.

(2)The oath must be administered by the Speaker.

140ADeclaration of interests

(1)This section applies to the information commissioner on appointment.

Note—

Appointment includes reappointment. See the Acts Interpretation Act 1954, schedule 1, definition appoint.

(2)The information commissioner must, within 1 month, give the Speaker a statement setting out the information mentioned in subsection (3) in relation to—

(a)the interests of the information commissioner; and

(b)the interests of each person who is a related person in relation to the information commissioner.

(3)The information to be set out in the statement is the information that would be required to be disclosed under the Parliament of Queensland Act 2001, section 69B if the information commissioner were a member of the Legislative Assembly.

(4)Subsections (5) and (6) apply if, after the giving of the statement—

(a)there is a change in the interests mentioned in subsection (2); and

(b)the change is of a type that would have been required to be disclosed under the Parliament of Queensland Act 2001, section 69B if the information commissioner were a member of the Legislative Assembly.

(5)The information commissioner must give the Speaker a revised statement.

(6)The revised statement must—

(a)be given as soon as possible after the relevant facts about the change come to the information commissioner’s knowledge; and

(b)comply with subsection (3).

(7)The Speaker must, if asked, give a copy of the latest statement to—

(a)the Minister; or

(b)the leader of a political party represented in the Legislative Assembly; or

(c)the Crime and Corruption Commission; or

(d)a member of the parliamentary committee; or

(e)the integrity commissioner.

(8)The Speaker must, if asked, give a copy of the part of the latest statement that relates only to the information commissioner to another member of the Legislative Assembly.

(9)A member of the Legislative Assembly may, by writing given to the Speaker, allege that the information commissioner has not complied with the requirements of this section.

(10)A reference in this section to an interest is a reference to the matter within its ordinary meaning under the general law and the definition in the Acts Interpretation Act 1954, schedule 1 does not apply.

(11)In this section—

integrity commissioner means the Queensland Integrity Commissioner under the Integrity Act 2009.

related person, in relation to the information commissioner, means—

(a)the information commissioner’s spouse; or

(b)a person who is totally or substantially dependent on the information commissioner and—

(i)the person is the information commissioner’s child; or

(ii)the person’s affairs are so closely connected with the affairs of the information commissioner that a benefit derived by the person, or a substantial part of it, could pass to the information commissioner.

s 140A ins 2010 No. 37s 175

amd 2013 No. 39s 110(1)sch 3pt 1; 2014 No. 21s 94(2)sch 2

140BConflicts of interest

(1)If the information commissioner has an interest that conflicts or may conflict with the discharge of the information commissioner’s responsibilities, the information commissioner—

(a)must disclose the nature of the interest and conflict to the Speaker and parliamentary committee as soon as practicable after the relevant facts come to the information commissioner’s knowledge; and

(b)must not take action or further action concerning a matter that is, or may be, affected by the conflict until the conflict or possible conflict is resolved.

(2)If the conflict or possible conflict between an interest of the information commissioner and the information commissioner’s responsibilities is resolved, the information commissioner must give to the Speaker and parliamentary committee a statement advising of the action the information commissioner took to resolve the conflict or possible conflict.

(3)A reference in this section to an interest or to a conflict of interest is a reference to those matters within their ordinary meaning under the general law and, in relation to an interest, the definition in the Acts Interpretation Act 1954, schedule 1 does not apply.

s 140B ins 2010 No. 37s 175

amd 2013 No. 39s 110(1)sch 3pt 1

141Restriction on outside employment

(1)The information commissioner must not, without the Minister’s prior approval in each particular case—

(a)hold any office of profit other than that of information commissioner; or

(b)engage in any remunerative employment or undertaking outside the duties of the office.

(2)Contravention of subsection (1) is misconduct under section 160(a).

142Resignation

(1)The information commissioner may resign by signed notice given to the Minister.

(2)As soon as practicable after the notice is given to the Minister, the Minister must—

(a)give the notice to the Governor for information; and

(b)give a copy of the notice to—

(i)the Speaker of the Assembly; and

(ii)the chairperson of the parliamentary committee.

(3)Failure to comply with subsection (2) does not affect the effectiveness of the resignation.

143Acting information commissioner

(1)The Governor in Council may appoint a person to act as information commissioner—

(a)during a vacancy in the office; or

(b)during any period, or during all periods, when the information commissioner is absent from duty or from Australia or is, for another reason, unable to perform the duties of the office.

(2)The acting information commissioner is appointed under this Act and not the Public Sector Act 2022.

(3)Before performing the duties of office, the acting information commissioner must make an oath or affirmation to the effect that he or shethey will faithfully and impartially perform the duties of the office.

(4)The oath must be administered by the Speaker.

(5)The Acts Interpretation Act 1954, section 25(1)(b)(iv) and (v) does not apply to the office of acting information commissioner.

s 143 amd 2022 No. 34s 365sch 3

144Staff employed under Public Sector Act 2022

(1)The staff of the OIC must be employed under the Public Sector Act 2022.

(2)However, subsection (1) does not apply to the RTI commissioner or the privacy commissioner.

s 144 amd 2022 No. 34s 365sch 3

145Delegation

The information commissioner may delegate to a member of the staff of the OIC all or any of the commissioner’s powers under this Act.

146Staff subject only to direction of information commissioner

(1)The staff of the OIC are not subject to direction by any person, other than the information commissioner or a person authorised by the commissioner, about the way in which the commissioner’s powers under an Act are to be exercised.

(2)Subsection (1) has effect despite the Public Sector Act 2022.

s 146 amd 2022 No. 34s 365sch 3

147Right to Information Commissioner

(1)There is to be a Right to Information Commissioner (the RTI commissioner).

(2)The RTI commissioner is a member of the staff of the OIC.

148Role and function of RTI commissioner

(1)The RTI commissioner’s role is that of a deputy to the information commissioner, with particular responsibility for matters relating to the information commissioner’s functions under this Act.

(2)The RTI commissioner’s function is to perform the functions of the information commissioner under this Act to the extent the functions are delegated to the RTI commissioner by the information commissioner.

149RTI commissioner subject to direction of information commissioner

The RTI commissioner is subject to the direction of the information commissioner.

150Appointment

(1)The RTI commissioner is appointed by the Governor in Council.

(2)The commissioner is appointed under this Act and not under the Public Sector Act 2022.

s 150 amd 2022 No. 34s 365sch 3

151Procedure before appointment

(1)A person may be appointed as RTI commissioner only if—

(a)the Minister has placed press advertisements nationally calling for applications from suitably qualified persons to be considered for appointment; and

(b)the Minister has consulted with the parliamentary committee about—

(i)the process of selection for appointment; and

(ii)the appointment of the person as commissioner.

(2)Subsection (1)(a) and (b)(i) does not apply to the reappointment of a person as RTI commissioner.

152Term of appointment

(1)The RTI commissioner holds office for the term, of not more than 5 years, stated in the instrument of appointment.

(2)However, a person being reappointed as RTI commissioner can not be reappointed for a term that would result in the person holding office as RTI commissioner for more than 10 years continuously.

153Remuneration and conditions

(1)The RTI commissioner must be paid remuneration and other allowances decided by the Governor in Council.

(2)The remuneration paid to the commissioner must not be reduced during the commissioner’s term of office without the commissioner’s written agreement.

(3)In relation to matters not provided for by this Act, the commissioner holds office on the terms and conditions decided by the Governor in Council.

154Leave of absence

The information commissioner may approve a leave of absence for the RTI commissioner in accordance with entitlements available to the RTI commissioner under the RTI commissioner’s conditions of office.

s 154 sub 2011 No. 45s 246

155Preservation of rights if public service officer appointed

(1)A public service officer who is appointed to the office of RTI commissioner or who is appointed to act in the office is entitled to retain all existing and accruing rights as if service in the office were a continuation of service as a public service officer.

(2)If the person stops holding the office for a reason other than misconduct, the person is entitled to be employed as a public service officer.

(3)The person must be employed on the classification level and remuneration that the Public Sector Commission or another entity prescribed under a regulation considers the person would have attained in the ordinary course of progression if the person had continued in employment as a public service officer.

s 155 amd 2022 No. 34s 365sch 3

156Restriction on outside employment

(1)The RTI commissioner must not, without the Minister’s prior approval in each particular case—

(a)hold any office of profit other than that of RTI commissioner; or

(b)engage in any remunerative employment or undertaking outside the duties of the office.

(2)Contravention of subsection (1) is misconduct under section 160(a).

157Resignation

(1)The RTI commissioner may resign by signed notice given to the Minister.

(2)As soon as practicable after the notice is given to the Minister, the Minister must—

(a)give the notice to the Governor for information; and

(b)give a copy of the notice to—

(i)the Speaker of the Assembly; and

(ii)the chairperson of the parliamentary committee.

(3)Failure to comply with subsection (2) does not affect the effectiveness of the resignation.

158Acting RTI commissioner

(1)The Governor in Council may appoint a person to act as RTI commissioner—

(a)during a vacancy in the office; or

(b)during any period, or during all periods, when the RTI commissioner is absent from duty or from Australia or is, for another reason, unable to perform the duties of the office.

(2)The acting RTI commissioner is appointed under this Act and not the Public Sector Act 2022.

(3)The Acts Interpretation Act 1954, section 25(1)(b)(iv) and (v) does not apply to the office of acting RTI commissioner.

s 158 amd 2022 No. 34s 365sch 3

159Definition for pt 5

In this part—

commissioner means the information commissioner, the RTI commissioner or the privacy commissioner.

160Grounds for removal or suspension

The following are grounds for removal or suspension of a commissioner from office—

(a)proved incapacity, incompetence or misconduct;

(b)conviction of an indictable offence.

161Removal on address

(1)The Governor may, on an address from the Assembly, remove a commissioner from office.

(2)The motion for the address may be moved only by the Premier.

(3)The Premier may move the motion only if—

(a)the Premier has given the commissioner a statement setting out the reasons for the motion; and

(b)the statement and any written response by the commissioner have been tabled in the Assembly; and

(c)the Premier has consulted with the parliamentary committee about the motion; and

(d)agreement to the motion has been obtained from—

(i)all members of the parliamentary committee; or

(ii)a majority of members of the parliamentary committee, other than a majority consisting wholly of members of the political party or parties in government in the Assembly.

162Suspension on address

(1)The Governor may, on an address from the Assembly, suspend a commissioner from office.

(2)The motion for the address may be moved only by the Premier.

(3)The Premier may move the motion only if—

(a)the Premier has given the commissioner a statement setting out the reasons for the motion; and

(b)the statement and any written response by the commissioner have been tabled in the Assembly; and

(c)the Premier has consulted with the parliamentary committee about the motion; and

(d)agreement to the motion has been obtained from—

(i)all members of the parliamentary committee; or

(ii)a majority of members of the parliamentary committee, other than a majority consisting wholly of members of the political party or parties in government in the Assembly.

(4)The commissioner is entitled to be paid salary and allowances for the period of the suspension only if—

(a)the Assembly resolves that salary and allowances be paid for the period; or

(b)the Assembly does not pass a resolution under paragraph (a) and the Governor in Council approves the payment of salary and allowances for the period.

163Suspension if Assembly not sitting

(1)If the Assembly is not sitting, the Governor in Council may suspend a commissioner from office.

(2)The Governor in Council may suspend the commissioner only if—

(a)the Premier has given the commissioner a statement setting out the reasons for the suspension; and

(b)the Premier has considered any response by the commissioner to the statement.

(3)The Premier must table the statement and any written response by the commissioner in the Assembly within 3 sitting days after the day the suspension begins.

(4)The suspension stops having effect—

(a)at the end of 6 sitting days after the day the suspension begins; or

(b)if the commissioner is earlier suspended or removed from office on an address from the Assembly—at the earlier time.

(5)If the suspension stops having effect under subsection (4)(a), the commissioner is entitled to be paid salary and allowances for the period of the suspension.

(6)Except as provided in subsection (5), the commissioner is entitled to be paid salary and allowances for the period of the suspension only if—

(a)the Assembly resolves that salary and allowances be paid for the period; or

(b)the Assembly does not pass a resolution under paragraph (a) and the Governor in Council approves the payment of salary and allowances for the period.

164Acts Interpretation Act 1954

The Acts Interpretation Act 1954, section 25(1)(b)(i) to (iii) does not apply to the removal or suspension of a commissioner.

165Third party proceedings

(1)The information commissioner or a member of the staff of the OIC can not be compelled—

(a)to produce an RTI document in third party legal proceedings; or

(b)to disclose RTI information in third party legal proceedings.

(2)In this section—

RTI document means a document received, or created, by the commissioner or a member of the staff of the OIC in performing functions under this Act.

RTI information means information that the commissioner or a member of the staff of the OIC obtained in performing functions under this Act.

third party legal proceedings means a legal proceeding other than—

(a)a legal proceeding started by the commissioner; or

(b)a legal proceeding started against the commissioner or a member of the staff of the OIC arising out of the performance of functions under this Act.

166Costs in proceedings

If a proceeding arising out of the performance of the functions of the information commissioner is started by the State, the reasonable costs of a party to the proceeding must be paid by the State.

167Information commissioner or RTI commissioner may appear in proceedings

The information commissioner or RTI commissioner is entitled to appear and be heard in a proceeding arising out of the performance of the functions of the information commissioner.

168Intervention by Attorney-General

(1)The Attorney-General may, for the State, intervene in a proceeding before a court arising out of the performance of the functions of the information commissioner under this Act.

(2)If the Attorney-General intervenes—

(a)the court may make the order as to costs against the State the court considers appropriate; and

(b)the Attorney-General becomes a party to the proceeding.

169Meaning of access was required or permitted to be given under this Act

In this part—

access was required or permitted to be given under this Act means access was required or permitted to be given under this Act, other than under section 20 or 21.

170Access—protection against actions for defamation or breach of confidence

(1)If a person has been given access to a document and—

(a)the access was required or permitted to be given under this Act; or

(b)the access was authorised by a decision-maker, in the genuine belief that the access was required or permitted to be given under this Act;

then—

(c)no action for defamation or breach of confidence lies against the State, an agency, a Minister or an officer of an agency because of the authorising or giving of the access; and

(d)no action for defamation or breach of confidence in relation to any publication involved in, or resulting from, the giving of the access lies against the author of the document or another person because of the author or another person having given the document to an agency or Minister.

(2)The giving of access to a document (including an exempt document or a contrary to public interest document) because of an access application or under section 78 or 78A must not be taken for the purposes of the law relating to defamation or breach of confidence to constitute an authorisation or approval of the publication of the document or its contents by the person to whom access is given.

s 170 amd 2012 No. 45s 7

171Publication—protection against actions for defamation or breach of confidence

(1)If a document has been published and—

(a)the publication was—

(i)required or permitted under section 78 or 78A; or

(ii)authorised by a Minister, or an officer having authority in relation to disclosure logs, in the genuine belief the publication was required or permitted under section 78 or 78A; or

(b)the publication was required under section 110 or authorised by the information commissioner in the genuine belief that the publication was required under section 110;

then—

(c)no action for defamation or breach of confidence lies against the State, an agency, a Minister, the commissioner or an officer because of the publication; and

(d)no action for defamation or breach of confidence in relation to the publication or a resulting publication lies against the author of the document or another person because of the author or another person having given the document to an agency, Minister or commissioner.

(2)The publication of a document (including an exempt document or contrary to public interest document) under section 78, 78Asection 78A or 110 must not be taken for the purposes of the law relating to defamation or breach of confidence to constitute an authorisation or approval of the publication of the document or its contents.

s 171 amd 2012 No. 45s 8

172Access—protection in respect of offences

If access has been given to a document and—

(a)the access was required or permitted to be given under this Act; or

(b)the access was authorised by a decision-maker, in the genuine belief that the access was required or permitted to be given under this Act;

neither the person authorising the access nor any other person concerned in the giving of the access commits a criminal offence merely because of authorising or giving of the access.

173Publication—protection in respect of offences

If a document has been published and—

(a)the publication was—

(i)required or permitted under section 78 or 78A; or

(ii)authorised by a Minister, or an officer having authority in relation to disclosure logs, in the genuine belief the publication was required or permitted under section 78 or 78A; or

(b)the publication was required under section 110 or authorised by the information commissioner in the genuine belief that the publication was required under section 110;

the person authorising publication and any other person concerned in the publication of the document do not commit a criminal offence merely because of authorising or being concerned in the publication.

s 173 amd 2012 No. 45s 9

174Protection of agency, information commissioner etc. from personal liability

(1)A relevant entity does not incur civil liability for an act done or omission made honestly and without negligence under this Act.

(2)A liability that would, other than for this section, attach to a relevant entity attaches instead to the State.

(3)In this section—

relevant entity means any of the following—

(a)an agency;

(b)an agency’s principal officer;

(c)a Minister;

(d)a decision-maker;

(e)a person acting under the direction of an agency, an agency’s principal officer or a Minister;

(f)the information commissioner;

(g)a member of the staff of the OIC.

175Direction to act in particular way

(1)A person must not give a direction, either orally or in writing to a person required or permitted to make a decision under this Act directing the person to make a decision the person believes is not the decision that should be made under this Act.

Maximum penalty—100 penalty units.

(2)Subsection (1) does not apply to the information commissioner or a person authorised by the commissioner in relation to a direction that may be given to a member of the staff of the OIC under section 146.

(3)A person must not give a direction, either orally or in writing to—

(a)a person who is an employee or officer of the agency involved in a matter under this Act; or

(b)an employee of a Minister involved in a matter under this Act;

directing the person to act contrary to the requirements of this Act.

Maximum penalty—100 penalty units.

176Unlawful access

A person must not, in order to gain access to a document containing another person’s personal information, knowingly deceive or mislead a person exercising powers under this Act.

Maximum penalty—100 penalty units.

177False or misleading information

(1)A person must not give information to the information commissioner, or a member of the staff of the OIC, that the person knows is false or misleading in a material particular.

Maximum penalty—100 penalty units.

(2)Subsection (1) does not apply to information given in a document, if the person when giving the document—

(a)informs the commissioner or member of the staff of the OIC, to the best of the person’s ability, how the information is false or misleading; and

(b)gives the correct information to the commissioner or member of the staff of the OIC if the person has, or can reasonably obtain, the correct information.

(3)It is enough for a complaint against a person for an offence against subsection (1) to state that the information was ‘false or misleading’, without specifying whether it was false or whether it was misleading.

178Failure to produce documents or attend proceedings

(1)A person given notice under section 103 to—

(a)give information; or

(b)produce a document; or

(c)attend before the information commissioner;

must not, without reasonable excuse, fail to do so.

Maximum penalty—100 penalty units.

(2)If the person is an individual and is given notice to give information or produce a document, it is a reasonable excuse for the person to fail to give the information or produce the document if complying with the requirement might tend to incriminate the person or expose the person to a penalty.

179Disclosure or taking advantage of information

(1)If a person is or has been the information commissioner or a member of the staff of the OIC, the person must not—

(a)otherwise than for the purposes of this Act or a proceeding arising under this Act, disclose any information that the person obtained in performing functions under this Act; or

(b)take advantage of that information to benefit himself or herselfthemself or another person.

Maximum penalty—100 penalty units.

(2)Subsection (1)(a) does not apply if the person reasonably believes that the disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of an individual or to public health or safety.

180Operation of Public Records Act 2002

(1)Without limiting section 4, this Act does not affect the provisions of the Public Records Act 2002 relating to the giving of access to documents by the Queensland State Archives.

(2)Without limiting section 6, the Public Records Act 2002 does not prevent a person being given access to a document in the custody of Queensland State Archives to which a person may be given access under this Act.

181Non-official documents in Queensland State Archives etc.

A document that—

(a)has been placed in the custody of Queensland State Archives or a public library by a person; and

(b)was not, immediately before being placed in that custody, a document of an agency or a document of a Minister;

is available for access to members of the community under this Act, subject to any restrictions or conditions imposed by the person—

(c)at the time the document was placed in the custody of the Queensland State Archives or public library; or

(d)as permitted under section 23(2) of the repealed Freedom of Information Act 1992.

182Official documents in Queensland State Archives

(1)For the purposes of this Act, a document that—

(a)has been placed in the custody of the Queensland State Archives by an agency (whether before or after the commencement of this section); and

(b)is not reasonably available for inspection under the Public Records Act 2002;

is taken to be in the agency’s possession, or, if the agency no longer exists, to be in the possession of the agency whose functions are most closely related to the document, if the agency is entitled to access to the document.

(2)For the purposes of this Act, a document that has been placed by an agency (including the Queensland State Archives) in a place of deposit under the Libraries Act 1988 (whether before or after the commencement of this part) or the Public Records Act 2002 is taken to be in the agency’s possession, or, if the agency no longer exists, the agency whose functions are most closely related to the document, if the agency is entitled to access to the document.

183Review of Act

(1)The Minister must review this Act and the review must start no later than 2 years after the commencement of this section.

(2)The objects of the review include—

(a)deciding whether the primary object of this Act remains valid; and

(b)deciding whether this Act is meeting its primary object; and

(c)deciding whether the provisions of this Act are appropriate for meeting its primary object; and

(d)investigating any specific issue recommended by the Minister or the information commissioner.

(3)The Minister must, as soon as practicable after finishing the review, table a report about the outcome of the review in the Assembly.

184Reports of information commissioner

(1)The information commissioner may make a report to the Speaker on matters relating to the performance of the commissioner’s functions, including matters relating to a particular external review.

(2)The commissioner must, as soon as practicable after the end of each financial year, give the Speaker and parliamentary committee a report of the operations of the OIC during that year.

(3)A report under subsection (2) must include, in relation to the financial year to which it relates, details of the matters prescribed under a regulation.

(4)The parliamentary committee may require the commissioner to prepare and give the committee a report on a particular aspect of the performance of the commissioner’s functions.

(5)If a report of the commissioner is given to the Speaker or the parliamentary committee, the Speaker or the chairperson of the committee must cause the report to be tabled in the Assembly on the next sitting day after it is given.

186Strategic review of office

(1)Strategic reviews of the OIC must be conducted under this section and sections 187 and 188.

(2)The first review under this section must be conducted within 4 years after the commencement of this section.

(3)Subject to subsection (2), a strategic review must be conducted at least every 5 years, counting from the date of the report (the earlier report) for the most recent earlier strategic review up to when the reviewer is appointed under subsection (5) to undertake the latest review.

(4)However, if the parliamentary committee reported to the Assembly about the earlier report, and the committee’s report made recommendations to which a Minister was required to respond under the Parliament of Queensland Act 2001, section 107 the 5 years is counted from when the Minister’s response was tabled under that section.

(5)Each strategic review must be undertaken by an appropriately qualified person (reviewer), appointed by the Governor in Council, who must give a report on the review.

(6)For subsection (5), a corporation is an appropriately qualified person if a director, employee or other staff member of the corporation is appropriately qualified to undertake the review.

(7)The terms of reference for a strategic review are to be decided by the Governor in Council.

(8)Before a reviewer is appointed to conduct a strategic review, the Minister must consult with the parliamentary committee and the information commissioner about—

(a)the appointment of the reviewer; and

(b)the terms of reference for the review.

(9)The remuneration and other terms of appointment of the reviewer are as decided by the Governor in Council.

(10)In this section—

strategic review, of the OIC, includes—

(a)a review of the commissioner’s functions; and

(b)a review of the commissioner’s performance of the functions to assess whether they are being performed economically, effectively and efficiently.

s 186 amd 2017 No. 17s 236

187Conduct of strategic review

In conducting a strategic review—

(a)the reviewer has the powers an authorised auditor has under the Auditor-General Act 2009 for an audit of an entity; and

(b)that Act and other Acts apply to the reviewer as if the reviewer were an authorised auditor conducting an audit of an entity.

188Report of strategic review

(1)The reviewer must give a copy of a proposed report on the strategic review to the Minister and the information commissioner.

(2)The commissioner may, within 15 business days after receiving the proposed report, give the reviewer written comments on anything in the proposed report.

(3)If the commissioner comments under subsection (2), the reviewer must—

(a)if the reviewer and commissioner can agree about how to dispose of a comment—incorporate into the report any agreed amendment necessary to dispose of the comment; or

(b)if the reviewer and commissioner can not agree about how to dispose of a comment—include the comment, in full, in the report.

(4)After complying with subsections (1) and (3), the reviewer must give the report (strategic review report) to the Minister and the commissioner.

(5)The strategic review report must be the same as the proposed report given to them under subsection (1), apart from the changes made under subsection (3).

(6)The Minister must table the strategic review report in the Assembly within 3 sitting days after the Minister receives the report.

(7)For the Parliament of Queensland Act 2001, section 92(2) the report is referred to the parliamentary committee.

s 188 amd 2011 No. 15s 67

189Functions of parliamentary committee

The parliamentary committee has the following functions under this Act—

(a)to monitor and review the performance by the information commissioner of the commissioner’s functions under this Act;

(b)to report to the Assembly on any matter concerning the commissioner, the commissioner’s functions or the performance of the commissioner’s functions that the committee considers should be drawn to the Assembly’s attention;

(c)to decide, in consultation with the commissioner, the statistical information (including statistical information about giving access to information other than on an access application) agencies and Ministers are to give the commissioner for reports under section 131;

(d)to examine each annual report tabled in the Assembly under this Act and, if appropriate, to comment on any aspect of the report and to make recommendations;

(e)to examine each strategic review report tabled in the Assembly under this Act and, if appropriate, to comment on any aspect of the report and to make recommendations;

(f)to report to the Assembly any changes to the functions, structures and procedures of the OIC the committee considers desirable for the more effective operation of this Act;

(g)the other functions conferred on the parliamentary committee by this Act.

s 189 amd 2011 No. 15s 68

190Power of person acting for another person

(1)To remove any doubt, it is declared that, in relation to an application or other matter under this Act—

(a)a person’s agent is able to do, in accordance with the terms of the person’s authorisation as agent, anything that the person could do; and

(b)a child’s parent is able to do anything that the child could do if the child were an adult.

(2)In this section—

child see section 25.

parent see section 25.

191Contents of prescribed written notice

If an agency or Minister must give a person a prescribed written notice of a decision under this Act, the notice must be in writing and state the following details—

(a)the decision;

(b)the reasons for the decision;

Note—

See the Acts Interpretation Act 1954, section 27B (Content of statement of reasons for decision).

(c)the day the decision was made;

(d)the name and designation of the person making the decision;

(e)if the decision is not the decision sought by the person—any rights of review under this Act in relation to the decision, the procedures to be followed for exercising the rights and the time within which an application for review must be made.

192Approval of forms

The chief executive may approve forms for use under this Act.

193Regulation-making power

The Governor in Council may make regulations under this Act.

194Repeal

The Freedom of Information Act 1992, No. 42 is repealed.

ch 7 pt 2 hdg sub 2009 No. 48s 233

195Outdated references

In an Act or document, if the context permits, a reference to the Freedom of Information Act 1992 is taken to be a reference to this Act.

196Continuation of appointment as information commissioner

The person who, immediately before the commencement of section 123, was the information commissioner under the repealed Freedom of Information Act 1992—

(a)continues as the information commissioner under this Act until an appointment is made under section 134; and

(b)is taken to have satisfied the requirements under section 140 concerning the oath.

197Continuation of appointment as acting information commissioner

The person who, immediately before the commencement of section 143, was the acting information commissioner under the repealed Freedom of Information Act 1992—

(a)continues as the acting information commissioner under this Act until an appointment is made under section 134 or 143; and

(b)is taken to have satisfied the requirements under that section concerning the oath.

198Pre-enactment recruitment process

An appointment of a person as information commissioner or RTI commissioner after the enactment of this Act is not to be taken to be invalid only because action was taken in relation to the filling of the role of information commissioner or RTI commissioner before the enactment.

199Applications under Freedom of Information Act 1992

(1)The repealed Freedom of Information Act 1992 continues to apply in relation to an application under that Act that has not been finalised before the commencement of this section as if this Act had not been enacted.

(2)For subsection (1), an application has not been finalised until—

(a)a decision on the application is made; and

(b)either—

(i)the time for exercising any review rights or appeal rights in relation to the decision has ended without any rights being exercised; or

(ii)any review or appeal in relation to the decision has ended.

200Time limit for access under Freedom of Information Act 1992 continues to apply

The repealed Freedom of Information Act 1992, section 31A continues to apply if a person is given access under that Act to a document whether before or after the commencement of this section.

201Statements of affairs

The repealed Freedom of Information Act 1992, section 18 continues to apply to an agency until the agency publishes a statement of affairs under that section.

202Refusal to deal with application—previous application for same documents

For section 43, a first application may be an application under the repealed Freedom of Information Act 1992.

203Delayed appeals and applications to QCAT

(1)If a person may appeal to the appeal tribunal under section 119 before QCAT comes into existence, the person may appeal to the appeal tribunal within 20 business days after QCAT comes into existence.

(2)If a person may, within a period, apply to QCAT under section 120 or 121 before QCAT comes into existence, the person may apply to QCAT within that period after QCAT comes into existence.

ch 7 pt 3 hdg ins 2009 No. 48s 234

204Definition for pt 3

In this part—

relevant period means the period starting on 1 July 2009 and ending immediately before the commencement of this part.

s 204 ins 2009 No. 48s 234

205Retrospective validation for particular delegations and directions

(1)A delegation, or an amendment of a delegation, made by a principal officer under this Act during the relevant period is taken to be, and always to have been, as valid as if section 30, as in force immediately after the commencement of this part, had been in force on the day the delegation, or the amendment, was made.

(2)A direction given by a Minister under this Act during the relevant period is taken to be, and always to have been, as valid as if section 31, as in force immediately after the commencement of this part, had been in force on the day the direction was given.

s 205 ins 2009 No. 48s 234

206Decision under s 55(2) is a reviewable decision

(1)A decision made during the relevant period stating the matters mentioned in section 55(2) is, and always has been, a reviewable decision under this Act as if section 55, as in force immediately after the commencement of this part, had been in force on the day the decision was made.

(2)Despite section 82(c) or 88(1)(d), an application for internal review or external review in relation to the decision may be made within 20 business days after the commencement of this part.

(3)If an application for internal review or external review in relation to the decision is made before the commencement of this part, for the purposes of any review, the application is taken to have been made immediately after the commencement of this part.

s 206 ins 2009 No. 48s 234

ch 7 pt 4 hdg ins 2010 No. 37s 176

206ADeclaration of interests by information commissioner

(1)This section applies to the person who, immediately before the commencement of this section, was the information commissioner.

(2)The person must comply with section 140A(2) within 1 month after the commencement of this section.

s 206A ins 2010 No. 37s 176