There are numerous limits on the type of documents that will be released following an access request. Some examples of documents that will not be released include:
- old documents sought under the Commonwealth legislation (s 12 Freedom of Information Act 1982 (Cth) (Freedom of Information Act)) (i.e. documents which came into existence more than five years before the commencement of the Freedom of Information Act. No such limitation applies under the Right to Information Act 2009 (Qld) (Right to Information Act))
- documents already publicly available (e.g. documents which are in public libraries (ss 12, 22 Freedom of Information Act))
- documents that are available by another means (ss 47(3)(f), 53 Right to Information Act)
- documents available under specialised access regimes (e.g. an administrative scheme established in an agency to provide access to specified documents, s 12 Freedom of Information Act). A similar provision also applies in the Right to Information Act (s 53 Right to Information Act)
- exempt documents. The categories of exempt documents are similar under both Acts.
Some of these exemptions are (sch 3 Right to Information Act):
- a matter of Cabinet or Executive Council
- budgetary information for local governments
- information that, if disclosed, would be contempt of parliament or contempt of court
- information that would not be admissible in legal proceedings by virtue of legal professional privilege
- information communicated in confidence
- national or state security information
- law enforcement or public safety information
- information relating to investment incentive schemes
- other information where disclosure is prohibited by a law in Queensland.
The secrecy provision for these exempt categories is not absolute. The Freedom of Information Act provides that nothing in the legislation is intended to prevent or discourage an agency or minister from releasing material if another law gives them power to release the information (s 3A Freedom of Information Act). The Right to Information Act also provides that it does not intend to prevent or discourage an agency or minister from releasing material if it can be done properly or if it is otherwise permitted or required by law (s 4 Right to Information Act).
The public interest test
For most documents, whether or not access is granted is determined by a statutory public interest test. This test requires the agency or minister to weigh public interest factors for and against disclosure. Factors favouring disclosure include where the information release could reasonably be expected to:
- promote open discussion of public affairs
- enhance the government’s accountability
- contribute to positive and informed debate on important issues or matters of serious interest.
Factors that favour non-disclosure include where the release of the information could prejudice the:
- private, business, professional, commercial or financial affairs of an entity
- the protection of an individual’s right to privacy.