information obligations of public service employees · information obligations of public service...

Information Obligations of Public

Service Employees

Good public servants are aware of information which must be protected and information there is authority to disclose.

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Right to Information and Privacy Guidelines 2

Information Obligations of Public Service Employees: Overview

Who is this guideline for?

This guideline is intended to assist Public Service Employees, who are subject to the Public Service Act 20081 (primarily Queensland Government Departmental employees), to understand the information rules which apply to them. However, many of the rules discussed in this guideline also apply to other Queensland public sector employees, including those working in local government, statutory authorities, government owned corporations and other public sector agencies. When we say you in this guideline we mean Public Service Employees. If you are a Public Service Employee all the rules in this guideline apply to you. For those who are not Public Service Employees: look for the icon of the sun2. These rules are not limited only to Public Service Employees and they may apply to you as well.

If there is a sun next to a section, the information is generally applicable to people who work in a Queensland public sector agency.

What is this guideline intended to achieve?

In addition to oversight, audit and review responsibilities the functions of the Office of the Information Commissioner (OIC) include giving information, assistance and training to agencies and the public on matters relevant to the Right to Information Act 2009 and the Information Privacy Act 2009. In 2008 the Queensland Government committed to developing a whole of government framework that would set the long term goals and strategic agenda for government information policy. The whole of government strategic information policy framework includes the following elements3:

A move to a push model

A clearly articulated governance framework; and

A comprehensive and integrated information policy.

1 Section 9 of the Public Service Act 2008 sets out that a person is a Public Service Employee if they are

employed under that Act as a Public Service Officer, a general employee or a temporary employee. Section 8 provides that a Public Service Officer is a chief executive, a senior executive or an officer of another type.

2 The website version of this guideline does not use the sun icon. The relevant sections instead appear in a yellow box.

3 Queensland Government The Right to Information – A response to the review of Queensland’s Freedom of Information Act, Queensland Government August 2008, page 4.


One barrier for senior executives and public service employees in fostering a more open public sector culture is how they reconcile obligations under the RTI and IP Act with other information obligations. This guide is intended to assist you in developing an understanding of how those obligations interact, give you a strong foundation on which to build a better culture around information, and ensure that you:

understand the rules and laws which define your obligations towards government information

understand the broader ethical context in which you undertake your role, both as it relates to your agency and to government as a whole; and

can reconcile your obligations of proactive and maximum disclosure with other obligations that prevent or limit disclosure of information.

Customising the guide

You are free to customise this guideline for your specific agency or need and you may reproduce any part of it for your use, for example in education materials or for training purposes, as long as you acknowledge the Office of the Information Commissioner as the original author. If you require a Microsoft Word version of the guideline please email the Office of the Information Commissioner at [email protected]. Disclaimer

This guide is introductory only, and deals with issues in a general way. It is not legal advice. Additional factors may be relevant in specific circumstances. For detailed guidance, legal advice should be sought.

Published 1 August 2012 and Last updated 28 May 2015. Changes to legislation after the

update date are not included in this document

This guide is introductory only, and deals with issues in a general

way. It is not legal advice. Additional factors may be relevant in

specific circumstances. For detailed guidance, legal advice

should be sought.

If you have any comments or suggestions on the content of this document, please submit them to [email protected]

mailto:[email protected]

mailto:[email protected]


Information Obligations of Public Service Employees: Table of Contents

Information Obligations of Public Service Employees: Overview ................. 1

Who is this guideline for? ................................................................................. 2

What is this guideline intended to achieve?...................................................... 2

Customising the guide ..................................................................................... 3

Disclaimer ........................................................................................................ 3

Information Obligations of Public Service Employees: Introduction ............ 6

Information is to be provided to the maximum extent possible ......................... 6

What is information? ........................................................................................ 6

Electronic information and electronic documents ............................................. 6

What does ‘making information available to the maximum extent possible’

mean for you? .................................................................................................. 7

Where do these rules come from? ................................................................... 7

Why do I have to follow these rules? ................................................................ 7

What are the consequences of not following these rules? ................................ 7

Where can I find out about these rules? ........................................................... 7

Information Obligations of Public Service Employees: Part One .................. 8

Rules which require the release of information .............................................. 8

1.1 Administrative access schemes ........................................................... 8

1.2 Access to documents under the Right to Information Act 2009 ............ 9

1.3 Publication Schemes .......................................................................... 10

1.4 Access to documents under the Information Privacy Act 2009 ........... 12

1.5 State archives and the Public Records Act 2002 ................................ 12

1.6 The Queensland Ombudsman ........................................................... 14

1.7 The Auditor-General and the Queensland Audit Office ....................... 14

1.8 The Information Commissioner .......................................................... 15

1.9 Documents required for a court proceeding........................................ 16

1.10 Crime And Corruption Commission .................................................... 17

1.11 The Coroners Act 2003 ...................................................................... 18

1.12 Employee records under the Public Service Regulation 2008 ............ 18

1.13 Information Standard 33: Information Access and Use ....................... 19


1.14 Contract Information under the State Procurement Policy .................. 19

Information Obligations of Public Service Employees: Part Two ................ 21

Rules which permit the release of information in specific circumstances .. 21

2.1 Disclosure Logs ................................................................................. 21

2.2 Statements of reasons under the Judicial Review Act 1991 ............... 22

2.3 Natural Justice ................................................................................... 23

2.4 Common law duty of fidelity ............................................................... 25

2.5 The Queensland Public Sector Code of Conduct ............................... 25

2.6 Public interest disclosures .................................................................. 26

Information Obligations of Public Service Employees: Part Three .............. 28

Rules which limit the release of information ................................................. 28

3.1. Personal information: when can you disclose it and to whom? ........... 28

3.2. Confidentiality (contractual and equitable) .......................................... 29

3.3. Cabinet Documents and Cabinet Information ..................................... 30

3.4. Secrecy Provisions ............................................................................. 31

3.5. Information Security Classification ..................................................... 31

3.6. Intellectual Property and Information Licensing .................................. 32

3.7 Defamation and defences .................................................................. 34

3.8 Legal professional privilege ................................................................ 35

Index ................................................................................................................. 36

Appendices ...................................................................................................... 38

Appendix 1: The Ethical Environment of the Public Service Agency ...... 38

Appendix 2: Public Interest Disclosures .................................................... 41

Appendix 3: Defences in the Defamation Act ............................................ 43

Appendix 4: Secrecy provisions ................................................................. 45


Information Obligations of Public Service Employees: Introduction

Information is to be provided to the maximum extent possible

This principle is reflected in the Right to Information Act 2009, which recognises4 that government information is a public resource and access to it is necessary for the effective functioning of a democratic society. Government openness increases government accountability, community participation in government and the quality of government decision making. What is information?

The term information is extremely broad. There is a useful definition in Information Standard 44—Information Asset Custodianship (IS44), which states that information is:

any collection of data that is processed, analysed, interpreted, organised, classified or communicated in order to serve a useful purpose, present facts or represent knowledge in any medium or form. This includes presentation in electronic (digital), print, audio, video, image, graphical, cartographic, physical sample, textual or numerical form.

Electronic information and electronic documents The Electronic Transactions (Queensland) Act 2001, section 16, provides that where a State law requires or permits the production of a paper document an electronic version may be provided if the following conditions are met:

The method used to produce the electronic copy of the document ensures the integrity of the document’s information, ie, the information is complete and unaltered, apart from immaterial or endorsed changes.

The information in the electronic documents will, at the time the communication is sent, be readily accessible.

The person the paper document is to be given to agrees to receive an electronic copy of the document.

This means that where you are giving information to someone you can provide it electronically if that person agrees. Providing information electronically can increase its useability and reduce costs and time for access.

4 Preamble to the Right to Information Act 2009.


What does ‘making information available to the maximum extent possible’ mean for you?

It means you have to be familiar with the information rules which exist in government. These are rules which:

Require you to release information

Permit you to release information in some circumstances; and

Limit the release of information.

Where do these rules come from?

The information rules come from a number of places: legislation (Acts, regulations), statutory instruments, such as certain guidelines made under legislation, Information Standards or Public Service Directives, common law and government handbooks. Why do I have to follow these rules?

All Public Service Employees under the Public Service Act 2008 are subject to the Public Sector Ethics Act 1994 and the Queensland Government Code of Conduct for the Queensland Public Service5; these require you to follow the law and the rules of government. You also have to follow these rules because Parliament has decided they are in the public interest: they protect what information needs to be protected, release what needs to be released, and provide a framework for making decisions about when it is in the public interest to release or withhold information. What are the consequences of not following these rules?

Depending on the nature of the rule and the reason it was not followed, a failure to comply could result in the removal of the information’s protection, a breach of an Act, or a breach of your ethical obligations. In some cases offences and penalties will apply for a breach of an Act. Where can I find out about these rules?

You can find out the rules which:

1. Require you to release information in Part 1 of this guideline. 2. Permit you to release information in specific circumstances in Part 2 of

this guideline. 3. Limit the release of information in Part 3 of this guideline.

5 The Queensland Government Code of Conduct for the Queensland Public Service requires public sector

employees to manage information as openly practicable within the legal framework and includes specific requirements relating to the handling of government-held information – see also Appendix 1 of this guide.


Information Obligations of Public Service Employees: Part One

Rules which require the release of information

1.1 Administrative access schemes

As part of the goal of pushing information out to the public, agencies need internal policies and schemes which make information available to the public without requiring a formal application. One example of such a scheme is Queensland Health’s administrative access scheme which allows people to access their own medical records. Agencies may also be subject to specific legislation which requires or permits access to information, for example land title information under the Land Title Act 1994. These will generally be accompanied by the authorisations or delegations which will allow officers to give effect to these policies.

1.1 Administrative access schemes 1.2 Access to documents under the Right to

Information Act 2009 1.3 Publication Schemes 1.4 Access to documents under the Information

Privacy Act 2009 1.5 State Archives and the Public Records Act

2002 1.6 The Queensland Ombudsman 1.7 The Auditor-General and the Queensland

Audit Office 1.8 The Information Commissioner 1.9 Documents required for a court proceeding 1.10 Crime and Corruption Commission 1.11 The Coroners Act 2003 1.12 Employee records under the Public Service

Regulation 2008 1.13 Information Standard 33 – Information

Access and Use 1.14 Contract information under the State

Procurement Policy


It is important that you follow these internal policies and/or agency-specific legislative requirements to give people access to information and be aware of your authorisations or delegations.

1.2 Access to documents under the Right to Information Act 2009

The Right to Information Act 2009 (RTI Act) creates a legal right to apply to access agency documents. Anyone can apply for any document and the RTI Act does no limit what they can do with documents they receive; there are application fees and processing charges for RTI applications. However, applying for access under the RTI Act is intended to be a last resort; where possible and permissible, information should be provided administratively to members of the public. What is a document? A document can be hardcopy or electronic. It includes paper or any other material on which there is writing or marks, figures, symbols or perforations which have meaning to someone qualified to interpret them. It also includes any disc, tape or other article or material from which sounds, images, writing or messages can be produced or reproduced.6 How is a decision made? Each agency has an RTI decision maker who will consider each application for access to documents. The RTI Act requires a pro disclosure bias when considering each application. In fact all documents are open to the public unless there is a really good reason for them not to be. There are time limits and decision making requirements which they must follow when making decisions. Decision makers are required to be independent; directing a decision maker to make a decision they do not believe should be made is an offence. Decision makers are required to read or look at every document your agency holds which is within the scope of what an RTI applicant has asked for. This means that your agency’s RTI decision maker may ask you to provide them with documents. It is important that you do so as quickly as possible, as there are strict time limits in the RTI Act for making decisions. It is also critical in responding to the request that you conduct all appropriate searches of hard copy and electronic files to locate the requested documents and provide the documents to the decision maker, even if you do not want the documents looked at or disclosed. If you do not locate all the documents and provide them to the decision maker, it is possible you and/or your CEO may be called to a public hearing

6 Schedule 1, Acts Interpretation Act 1954.


before the Information Commissioner to explain why you did not locate and hand the documents over. If there are issues or sensitivities around a document which might not be obvious or you have concerns about the release of the documents, it is a good idea to explain these matters to the decision maker when you send them the documents. When making their decision the decision maker may also need to ask you questions about the documents, particularly if they include technical information. There are factors which are not relevant to making a decision to release information including that the release of the information might embarrass the government. Will access ever be refused? Decision makers are able to refuse access to exempt information and to contrary to the public interest information. Exempt information includes Cabinet information, information which is subject to legal professional privilege and information which would endanger a current investigation. A full list of exemption provisions is contained in Schedule 3 of the RTI Act. Contrary to the public interest information is information which—based on the lists of public interest factors in Schedule 4 of the RTI Act—it would be contrary to the public interest to release. There are factors which favour disclosure, for example that disclosure will contribute to environmental protection, and factors which favour withholding the information, such as the protection of public safety. Decision makers must have a pro-disclosure bias when considering these factors and balance them to reach a decision. It is important to note that even where a document consists of exempt or contrary to the public interest information the RTI Act gives the decision maker the discretion to release the document to the applicant.

For more information see the Office of the Information Commissioner’s Guidelines on the RTI Act at www.oic.qld.gov.au.

1.3 Publication Schemes The RTI Act requires agencies to have a Publication Scheme. It also requires agencies to comply with the Ministerial Guidelines which set out how a Publication Scheme is to be organised. Publication Schemes are generally available on an agency’s website and contain information about the agency divided into seven broad classes of information:


1. About Us (Who we are and what we do): Agency information, location and contacts, constitutional and legal governance.

2. Our Services (The services we offer): A description of the services

offered by the agency, including advice and guidance, booklets and leaflets, transactions and media releases.

3. Our Finances (What we spend and how we spend it): Financial

information relating to projected and actual income and expenditure, tendering, procurement and contracts.

4. Our Priorities (What our priorities are and how we are doing): Strategy

and performance information, plans assessments, inspections and reviews.

5. Our Decisions (How we make decisions): Policy proposals and

decisions. Decision making processes, internal criteria and procedures, consultations.

6. Our Policies (Our policies and procedures): Current written protocols

for delivering our functions and responsibilities.

7. Our Lists (Lists and registers): Information held in registers required by law and other lists and registers relating to the functions of the agency.

The information to be included in a Publication Scheme should be significant, for example key policy documents; appropriate, having regard to existing legislation, privacy principles7 and security issues; and accurate. All policies are required by section 20 of the RTI Act to be made publicly available and the Publication Scheme is a one stop shop for that purpose. Each agency has its own procedures in place for keeping its Publication Scheme updated; depending on your agency’s arrangements, you may be involved in selecting or reviewing information for the Publication Scheme. It is important that the Publication Scheme’s information is kept up to date and relevant. If you are aware of a policy that is not in the Publication Scheme, let the person responsible for the Scheme know.

For more information see the Office of the Information Commissioner Guidelines on Publication Schemes at www.oic.qld.gov.au.

7 The obligations in Chapter 2 of the IP Act.


1.4 Access to documents under the Information Privacy Act 2009

Chapter 3 of the Information Privacy Act 2009 (IP Act) creates the legal right for an individual to apply for access to any document of an agency that contains their personal information. There are generally no fees payable for an IP Act application, although there may be charges for access to paper documents, whereas there are application, processing and access fees payable under the RTI Act. IP Act access decisions are made in the same way as decisions under the RTI Act, discussed above, and access may be refused on the same grounds. Chapter 3 of the IP Act also allows an individual to apply to have their personal information amended if they believe it is out of date, inaccurate, incomplete or misleading. There is no charge for this.

For more information see the Office of the Information Commissioner IP Act Guidelines at www.oic.qld.gov.au.

1.5 State archives and the Public Records Act 2002

A public record is any form of recorded information, whether received or created, that provides evidence of the decisions made and actions taken by a public authority while it undertakes its business functions8. All public authorities have a responsibility to make and keep full and accurate records of their activities; to follow relevant policy, standards and guidelines made by the State Archivist; and to ensure the safe custody and preservation of its public records regardless or the medium or technology used to create or maintain them. When permanent records are no longer required for official purposes public authorities can contact Queensland State Archives (QSA) to arrange for transfer of the records to QSA. A ‘permanent public record’ is one designated as permanent under the appropriate Retention and Disposal Schedule. Retention and Disposal Schedules A Retention and Disposal Schedule is a legal way to authorise the destruction or transfer of public records. Retention and Disposal Schedules:

describe the type of business a public authority performs

identifies the records produced as a result of that business; and

specifies how long each record must be kept.

8 Section 6, Public Records Act 2002.


Public Authorities will generally have two Retention and Disposal Schedules with which to comply:

1. A comprehensive Retention and Disposal Schedule developed by the authority and approved by the State Archivist which covers its core business records or a sector wide Retention and Disposal Schedule approved by the State Archivist for use by a specific type of authorities (for example Local Governments).

2. The General Retention and Disposal Schedule for Administrative

Records which applies to administrative records common to all public authorities.

It is important to ensure that you are familiar with the sections of the Retention and Disposal Schedule which cover the kinds of records you deal with. It is an offence to improperly dispose of a public record.9

For more information see Information Standard 31: Retention and Disposal of Public Records and Information Standard 40:

Recordkeeping.

Restricted Access Period Public records held by the State Archivist are to be made available to the public unless they are still in the restricted access period. Access to records in QSA custody subject to the restricted access period will generally be given under an RTI or IP Act application made to the public authority responsible for the record or with that authority’s written permission. The restricted access period is calculated from the date of last action on the record. The restricted access period is10:

For Ministerial records, records of a Parliamentary Secretary or records classified by the public authority as containing Executive Council material (as defined in the RTI Act), the restricted access period is thirty years from the date of last action on the record.

For records classified by a public authority as containing Cabinet information (as defined in Schedule 3, section 2 of the RTI Act), the restricted access period is ten years from the date of last action on the record.

If records contain personal affairs information (essentially, information about the private lives of individuals), the restricted access period may be extended by notice from the State Archivist or the responsible public authority to 100 years from the date of last action on the record.

9 Section 13, Public Records Act 2002 10 Section 16, Public Records Act 2002.


For more information see the Queensland State Archives’ resources available at

www.archives.qld.gov.au.

1.6 The Queensland Ombudsman

The Ombudsman’s role includes the investigation of an agency’s administrative actions—whether on referral from the Legislative Assembly, in response to a complaint, or on his or her own motion—and includes making recommendations to address the agency’s improper administrative actions or improve the agency’s administrative practices and procedures. This role includes the power to require an agency to produce a document or give information relevant to, or reasonably required for, the investigation. The Ombudsman also has the power to require a person to attend before the Ombudsman. Unless the person has a reasonable excuse, failure to comply with the Ombudsman’s requirement is an offence. No obligation to maintain secrecy or privilege applies to the giving of information to the Ombudsman. If the agency does not provide the information, a Magistrates Court can issue a subpoena requiring the agency to provide it. The Ombudsman also has the power to enter any place occupied by the agency, as long as notice is given to the chief executive, and take extracts from or copy documents located at that place.

For more information see the Queensland Ombudsman webpage at www.ombudsman.qld.gov.au.

1.7 The Auditor-General and the Queensland Audit Office

The Auditor-General, with the assistance of the Queensland Audit Office, is responsible for the auditing of a number of bodies including departments, statutory bodies, government owned corporations and local governments. The Auditor-General reports to the Queensland Parliament. Under the Auditor-General Act 2009, authorised auditors are entitled to full and free access to all documents and property of the entity being audited, to inspect, examine, photograph or film anything, and to take extracts from and make copies of any documents. 11 An authorised auditor may also, by written notice, require a person to provide information or documents to the auditor12 or to appear before the auditor to answer question or produce documents13.

11 Section 46, Auditor-General Act 2009 12 Section 47, Auditor-General Act 2009 13 Section 48, Auditor-General Act 2009


It is a penalty not to comply with a requirement under the Auditor-General Act 2009, to provide false or misleading information or to obstruct an authorised auditor.

1.8 The Information Commissioner

The Information Commissioner has the power to require information in relation to external reviews under both the Right to Information Act 2009 (RTI Act) and the Information Privacy Act 2009 (IP Act) and in relation to privacy compliance under the IP Act. External Review under the RTI or IP Act When dealing with an external review of an agency’s or Minister’s decision on an access or amendment application, the Information Commissioner is entitled to full and free access to all relevant documents. The Information Commissioner also has the power to require the agency or Minister to:

Provide better reasons for the initial decision.

Provide a transcript of an audio, shorthand or coded document.

Conduct further document searches. If the Information Commissioner believes a person has information or a document relevant to an external review, the Commissioner has the power to require the person to:

Provide the information in writing, signed by the person, or produce the document to the Commissioner

Attend before the Commissioner to answer questions relevant to the external review.

Attend before the Commissioner and give evidence under oath or affirmation.

Secrecy or other non-disclosure obligations, including legal professional privilege, do not operate to prevent the giving of information to the Information Commissioner.14 It is an offence to knowingly give the Information Commissioner false or misleading information or to fail to comply with a notice to give information, produce documents or attend to give information.15

14 Section 106, RTI Act. 15 Section 177 and 178, RTI Act.


1.9 Documents required for a court proceeding

The rules governing court proceedings include rules relating to the production of documents and/or information. Generally, these rules allow participants to require information/documents from government. The rules will vary depending on the court in which the proceeding is commenced and the type of action it is. A failure to comply with an order to produce documents could constitute contempt of court. It is important to note that even where a person may be able to access documents through a court process, they remain legally entitled to apply for access under the RTI Act. Supreme, District and Magistrates Courts A party to the proceeding may issue a subpoena requiring a government agency to produce a document or an item in court. The agency may object to the subpoena on a number of grounds, including that the information is not relevant, is subject to legal professional privilege, oppressive or the request is noncompliant with the rules.16 A party to a civil proceeding can issue a Notice of Non-party Disclosure to anyone not a party to the proceeding, including a government agency, to produce a document as long it is relevant, in the agency’s possession or control, and a document the agency would be required to produce at trial.17 The grounds on which a party can object to production include that the information is not relevant, the document is subject to legal professional privilege, or based on the expense and inconvenience of complying with the notice. Queensland Civil and Administrative Tribunal The Tribunal has the power to require an agency, whether as a party to the proceedings or as a third party, to produce documents.18 Evidence Act 1977 A party to a civil proceeding in any court can apply to a government agency to produce relevant documents that are in its possession. There are fees payable by the party for time spent inspecting, and for copying, a document.19

16 Criminal Practice Rules 1999, rules 29-40, Uniform Civil Procedure Rules 1999 (UCPR), rules 414-421. 17 UCPR, rules 242-249 18 Queensland Civil and Administrative Tribunal Act 2009 s57 and s97 19 Evidence Regulation 2007 s6


Justices Act 1886 proceedings A defendant who has been committed for trial, sentenced, or discharged can apply (for a fee) for a copy of the complaint, any order, or any documentary exhibit, apart from a photo. There are a number of documents which may not be provided to the defendant, including anything which was part of Childrens Court proceeding, a closed court, or for which an order prohibiting access or disclosure has been made20.

1.10 Crime And Corruption Commission

Under the Crime and Corruption Act 2001, the Crime and Corruption Commission (CCC) has a number of powers when conducting investigations into crimes or corruption. The CCC can give notice requiring the production of documents or an oral or written statement, inspect documents or things, seize or take copies of the documents or things and compel persons to attend and give evidence. These powers apply to units of public administration21, which include:

the Legislative Assembly and the parliamentary service

the Executive Council

a department

the police service

a local government

a state court; and

non corporate entities established or maintained under an Act that is funded to any extent by public money or is financially assisted by the State.

When giving information, a document or a thing to the CCC in response to a notice, you do not:

contravene an obligation to maintain its secrecy, whether imposed under an Act or another law

incur any civil liability in relation to the information, document or thing. A claim of privilege can be made in relation to the information, document or thing the CCC has requested access to; any such claim must be considered by the CCC.

For more information see the Crime and Corruption Commission webpage at www.ccc.qld.gov.au.

20 Justices Act 1886 s154 21 The CCC’s powers extend to other entities, such as corporations, but this guideline only discusses the CCC’s

powers in relation to units of public administration


1.11 The Coroners Act 2003

A Coroner investigating a death has the power to require information or a document which they believe is relevant to their investigation.22 An Act which authorises the disclosure of confidential information to a court will also authorise the disclosure of confidential information to the Coroner.23 The person who gives confidential information to the Coroner under the Coroners Act is protected from civil and criminal liability.

For more information see the Coroners Court page on the Queensland Courts website at www.courts.qld.gov.au/courts/coroners-court.

1.12 Employee records under the Public Service Regulation 2008

The Public Service Regulation 2008 (PSR) gives you the right to access your employee record. If you are a supervisor or manager, it is important that you are aware that your officers have this right. Often, the Human Resources area will manage the actual accessing of the record by the employee. Section 10(1) of the PSR states that an employee record means any of the following (as long as they contain information about the employee who wants to access it):

Report, correspondence item or other documents about the employee’s work performance, work conduct or work history.

A medical report about the employee.

A written allegation of misconduct by the employee. Section 10(2) lists what documents do not form part of an employee record. For example:

A medical report about the employee indicating that disclosure of information might be prejudicial to the employee’s wellbeing.

An employee assistance provider document.

A Public Interest Disclosure document about the employee.

A document about the employee relating to a suspected criminal offence or its investigation.

A document to which Legal Professional Privilege applies.

There are circumstances in which an employee will not be given access to their employee record. The chief executive may refuse access to all or part of the record if satisfied that access:24

22 Section 16 of the Coroners Act 2003 provides that a failure to provide the Coroner with information or

documents, unless you have a reasonable excuse, is an offence attracting a maximum of 30 penalty units. 23 Section 17, Coroners Act 2003. 24 Section 14(5), PSR.


would be an unreasonable invasion of someone else’s privacy

may cause harm to another person

would be contrary to a law

is information to which access would likely be refused if the employee made an application for it under the Information Privacy Act 2009 or the Right to Information Act 2009.

The chief executive may also refuse access to an employee record in full or in part if he or she reasonably considers the requested action would be likely to prejudice an existing relevant investigation or inquiry. This ability to refuse access expires as soon as the potential prejudice is no longer an issue or six months from when an employee requests access to the record.

1.13 Information Standard 33: Information Access and Use

Information Standard 33 (IS33) sets out the Queensland Government’s approach to government information. Its principles are that information is to be provided to the public to the maximum extent possible, free of charge where possible, and shared between Queensland government agencies and other governments with transparent conditions of use. IS33 sets the information sharing policy to which Queensland Government must adhere. How this policy is implemented will vary from agency to agency, depending on the sensitivity of the information with which they deal and agency specific legislation and policies which limit or prohibit the sharing of information.

For more information see Information Standard 33 on the Queensland Government Chief Information Office webpage at

http://qgcio.qld.gov.au/qgcio/architectureandstandards/informationstandards/current/pages/index.aspx

1.14 Contract Information under the State Procurement Policy

The State Procurement Policy requires affected agencies to publish details of their contracts on the Queensland Government Chief Procurement Office eTender website. The details which must be published vary depending on the value of the contract. For contracts under ten thousand dollars there is no requirement to publish information about the contract. Contracts whose value is between ten thousand dollars and less than ten million dollars must have the following information published:

Name and address of the agency

Description of the goods or services


Date of award of contract date

Value of the contract or standing offer arrangement

Name and address of the supplier; and

The procurement method used (only for contracts in excess of five hundred thousand dollars).

For contracts with a value of ten million dollars or more, the above information must be published, along with the following details:

Identifying details of the contract

Number of offers sought

Evaluation criteria and weightings

Form of contract

Deliverables

Contract milestones; and

Contract performance management. The State Procurement Policy lists the minimum information which must be published, but the Contract disclosure guidelines encourage agencies to consider publishing more information than the minimum where doing so does is in the public interest.

For more information please see the State Procurement Policy and the Contract disclosure guidelines available on the Queensland

Government Marketplace website at https://secure.publicworks.qld.gov.au/etender/index.do

https://secure.publicworks.qld.gov.au/etender/index.do


Information Obligations of Public Service Employees: Part Two

Rules which permit the release of information in specific circumstances

2.1 Disclosure Logs

The RTI Act25 provides for agencies to maintain a Disclosure Log. A Disclosure Log is an online list of documents which have been released under the RTI Act which may include a link to view or download the documents. Departments and Ministers have different Disclosure Log requirements from other agencies. Departments and Minister must include information about the applicant as part of their Disclosure Logs and, once documents are accessed by the applicant, they must be included in the Disclosure Log, subject to required deletions. Other agencies are not permitted to include details of the applicant in their Disclosure Log and they are permitted, rather than required, to include documents in the Disclosure Log after the applicant has accessed them. The Ministerial Guidelines for the Operations of Publication Schemes and Disclosure Logs set out specific requirements for all agencies; Section 78B of the RTI Act sets out the information which must not be included in a Disclosure Log.

For more information see the Office of the Information Commissioner Guidelines on Disclosure Logs at www.oic.qld.gov.au.

25 Section 78 for departments and Ministers; Section 78A for all other agencies.

2.1 Disclosure Logs 2.2 Statements of reasons under the Judicial

Review Act 1991 2.3 Natural Justice 2.4 Common law duty of fidelity 2.5 The Queensland Public Sector Code of

Conduct 2.6 Public Interest Disclosure


2.2 Statements of reasons under the Judicial Review Act 1991

The Judicial Review Act 1991 (JR Act) allows a person who has been adversely affected by an administrative decision to require the decision maker to give them a statement of reasons.26 What is an administrative decision? An administrative decision is a decision having an administrative character made, proposed to be made, or required to be made under an enactment. Most decisions made under an Act will be administrative decisions. When is a person aggrieved by a decision? A person is aggrieved by a decision if they are adversely affected over and above an ordinary member of the public because they had a special interest in the decision. They do not have to be the recipient of the decision. What is a Statement of Reasons? The intention of a statement of reasons is to fully explain the reason why the decision was made in sufficient detail to allow the person to know if they should exercise rights of review to challenge the decision. It should set out findings on questions of fact, a list of evidence relied upon, explain the conclusions reached, set out the steps followed by the decision maker and the factors taken into account as well as their importance. What information can be withheld from a Statement of Reasons? Personal affairs information and business affairs information may be withheld from a statement of reasons if it is confidential. Personal affairs information is information that relates to the private life of an individual, such as family, health or financial information. Business affairs information is information which relates to the business affairs of a business or company. Business or personal affairs information will be confidential if:

It was supplied in confidence and retains its confidential character

Publication would reveal a trade secret

Publication would, or reasonably could, endanger a State or local government authority’s competitive commercial activities

It was given under a duty imposed by an enactment; or

Providing the information would contravene a legislative duty not to communicate information of that kind to any person, or to limited people, or in limited circumstances.

26 Sections 32 and 33 of the Judicial Review Act 1991.


Information may also be withheld from a statement of reasons where the Attorney-General has issued a certificate stating that disclosure of the information would be contrary to the public interest because it would disclose Cabinet or Committee Cabinet information, or for any other specified reason that would ground a claim for not producing the information in a judicial proceeding. How is the information withheld? If giving the statement without the information would make the statement false or misleading, the decision maker is not required to provide the Statement of Reasons. If not, the decision maker may exclude the information from the Statement of Reasons. In either circumstance, the person who requested the Statement of Reasons must be supplied with a certificate setting out that the information is not included and why and, if the Statement is not being given, the reasons for that decision. A full record of the reasons for the decision should be held on the file.

2.3 Natural justice

Natural justice requires decision makers to be impartial and to act fairly.27 The obligation to accord natural justice is one of the fundamental underpinnings of government decision making and the failure to accord it is one of the grounds on which a decision may be overturned on judicial review. What is Natural Justice? Natural Justice is the right to be given a fair hearing, to present one’s case and to have a decision made by an unbiased decision maker.28 It consists of the hearing rule and the bias rule. The bias rule requires that a particular decision-maker should not make a decision where the circumstances would lead to reasonable doubt about their impartiality.29 The hearing rule provides that there is a common law duty to act fairly in the making of administrative decisions which affect rights, interests and legitimate expectations.30

27 Kioa v West (1985) HCA 81 (at 31); 159 CLR 550 (at 584). 28 Caxton, The Queensland Law Handbook, edition 12 (glossary, p 1076). 29 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 30 Kioa v West (1985) HCA 81 (at 31); 159 CLR 550 (at 584).


When do you have to accord natural justice? Fairness demands that every person has an opportunity to be heard before a decision maker makes a decision that adversely affects their interests. When making the decision, a decision maker must consider whether they intend to rely on material which:

would adversely affect a person’s interests

may affect the outcome of a decision; and

is not known to the person. In this situation, before the decision is made the decision maker must:

inform the person of the material which is prejudicial to their interests; and

provide them with an opportunity to address the material, ie give them a chance to be heard.

How do you accord Natural Justice? You accord natural justice by ensuring that you give the person an administrative hearing, which is most often accomplished by an exchange of letters between the decision maker and the person. The letters must set out the information on which the decision maker is intending to rely, subject to any confidentiality or legislative obligations to withhold it. A person is entitled to know all the details, including:

a description of the possible decision

the information on which any such decision would be based; and

the criteria for making that decision. It is not necessary to communicate the actual material or evidence; the substance of it may be summarised and communicated instead. In exceptional circumstances highly confidential information may not be able to be disclosed to the person. The administrative hearing must happen before the decision is made or a settled view is formed. It is not sufficient to write to the person, informing them that a decision has been made, and inviting them to provide additional information. The person must be given a reasonable opportunity to respond, based on the complexity of the material and the urgency of the decision. When considering the material and the response, the decision maker must be impartial and give the submission genuine consideration.


2.4 Common law duty of fidelity

Public Service Employees are employees of the Queensland Government. The employment relationship carries with it an implied duty to serve the employer with good faith and fidelity during the currency of your employment31. For Public Service Employees, this duty is modified by their duty as a Public Service Employee, as set out in the Queensland Government Code of Conduct, the Public Sector Ethics Act 1994 and the Public Service Act 2008 (discussed below). If there are situations which are not covered by these rules, it may be necessary to consider the duties of fidelity and loyalty. Information should be made available unless the public interest weighs against it. In this context, the implied duty of fidelity can be expressed as an obligation not to provide someone with information in order to:

gain an advantage for themselves or for a particular third party; or

cause any third party a disadvantage.32 This means you should not decide to give someone government information because you stand to gain a benefit or because doing so will have a negative impact on a third party.

2.5 The Queensland Public Sector Code of Conduct

The Public Sector Ethics Act 1994 sets out the ethics principles which apply to all public officials of a public service agency. They may also apply to other people, such as volunteers or contractors of the agency. The ethics principles are given effect by the Code of Conduct. The Code of Conduct applies when you are performing official duties, including when you represent your agency at conferences, training events, on business trips and attending work related social events.33

It includes the obligation to ensure the appropriate use and disclosure of official information. It sets out that the public right to know government information is balanced by necessary protections for certain kinds of information, including personal information (the management of which is governed by the Information Privacy Act 2009).

31 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 32 Paul Finn, Integrity in Government, adapting the rules set out by Deane J in Chan v Zacharia (1984) 154 CLR

178 33 Page 2, Queensland Code for the Queensland Public Service.


It also provides that you will:

treat official information with care and use it only for the purpose for which it was collected or authorised

store official information securely and limit access to people who require it for legitimate purposes

not use confidential or privileged information to further personal interests; and

continue to respect the confidentiality of official information once you leave the public service.

For more information, see Appendix 1: the Ethical Environment of Public Service agencies

2.6 Public interest disclosures

The Public Interest Disclosure Act 2010 (PID Act) is intended to provide protections for public service officers who disclose otherwise confidential or personal information in order to prevent or reveal a wrongdoing. Information given as part of a properly made public interest disclosure does not breach any provision of an Act which imposes a duty of confidentiality nor any oath, rule of law, or agreement which requires the information to be kept confidential or prohibits it from being disclosed. It also provides a defence of absolute privilege against defamation proceedings. The PID Act also prohibits a reprisal of any kind against someone who makes or intends to make a public interest disclosure, making it an offence. It also provides that any person caused detriment by a reprisal is entitled to seek damages in a court of law. The disclosure must be made to specified people about specified acts or practices in order to be considered a public interest disclosure and attract the protections under the PID Act. Appendix 2 contains a table of the people to whom public interest disclosures can be made. When can a public interest disclosure be made? The disclosure may only be made if:

you honestly believe on reasonable grounds that the information tends to show the conduct or other matter the subject of the disclosure; or

the information tends to show the conduct or other matter the subject of the disclosure, regardless of whether you honestly believe that it does so.


It is irrelevant whether the conduct or other matter happened before the PID Act commenced, may be happening when you make the disclosure, or relates to a future event which may or will happen. Making a public interest disclosure to a journalist A journalist is, for the PID Act, a person engaged in the occupation of writing or editing material intended for publication in the print or electronic news media. The circumstances in which you can make a public interest disclosure to a journalist are very limited. All of the following criteria must be met:

You have first made a public interest disclosure under Chapter 2 of the PID Act to a proper authority.

The proper authority either: o decided not to investigate or deal with the disclosure, or o investigated the disclosure but did not recommend taking any

action in relation to the disclosure; or o did not, within 6 months of you making the disclosure, notify

you whether or not the disclosure was to be investigated or dealt with.

For more information on making a PID, see Appendix 2: Public Interest Disclosures and publications on the Crime and Corruption Commission Website at: www.ccc.qld.gov.au.


Information Obligations of Public Service Employees: Part Three

Rules which limit the release of information

3.1. Personal information: when can you disclose it and to whom?

Personal information is any information about an individual whose identity is obvious from the information or can be worked out by reference to other information. Personal information must only be disclosed in accordance with the privacy principles in the Information Privacy Act 2009 (IP Act). What is disclosure? Disclosure under the IP Act means giving personal information to someone outside the agency who does not already know the information or is not in a position to find it out.34 If giving the information to someone does not fall within this definition of disclosure then the disclosure principles in the IP Act do not apply. When can I disclose personal information? The IP Act only allows personal information to be disclosed in specific circumstances. These are set out in Information Privacy Principle 11 and National Privacy Principle 2 and include:

when the individual has agreed to the disclosure

when the disclosure is authorised or required by law

34 Section 23(3) Information Privacy Act 2009

3.1 Personal Information 3.2 Confidentiality (contractual and equitable) 3.3 Cabinet Documents and Cabinet Information 3.4 Secrecy provisions 3.5 Information and Security Classification 3.6 Intellectual Property and Information Licensing 3.7 Defamation 3.8 Legal Professional Privilege


when the disclosure is necessary to prevent a serious risk to the safety of an individual or the public; and

when the information is required to assist with a law enforcement activity.

Even where the IP Act permits information to be disclosed you will need to have the appropriate agency authorisation to do so. Other legislation which regulates the disclosure of specific kinds of information will always override the IP Act; this means that even if IPP 11 or NPP 2 permit information to be disclosed another Act may prohibit the disclosure.

3.2. Confidentiality (contractual and equitable)

The obligation to keep information confidential arises when confidential information is given by one person to another person in circumstances where both people understand that it is to be kept confidential. This may be an unofficial or informal understanding or a contractual agreement. The information can be confidential because of a contract (contractual confidentiality) or it can be confidential because of the nature of the information and the circumstances of its communication (equitable confidentiality). Will confidential information always be confidential? It is possible to reduce the confidentiality of information by treating it in a way that is not consistent with its confidential nature. Sometimes the passage of time or advancements in technology or an industry will act to remove the confidential nature of information. When will disclosing information be a breach of confidence? If information is subject to a contractual obligation of confidentiality, the terms of the contract will set out the details of the obligation and the scope of the information covered. Acting contrary to the contractual terms would generally be a breach of confidence. If information is not contractually confidential, then the following is required for a breach of equitable confidentiality:

You must be able to specifically identify the information. This is necessary so that you can determine that it is not information that is generally available or common knowledge.


The information must have the ‘necessary quality of confidence’. It must not be generally available or common knowledge, and it must have a quality of secrecy or inaccessibility.

The information must not be useless or trivial.

There must be something in the circumstances around its communication which gives rise to an obligation of confidence, such as an express agreement or an unspoken understanding between the giver and the receiver that the information was confidential.

Giving the information out would be an unauthorised use. This may be a situation where the person who gave it to the agency objects to the use, or it is clear from the circumstances that the use is not in keeping with the confidential nature of the information or the circumstances in which it was provided.

Exemption under the RTI Act Confidentiality also forms the basis of an exemption under the RTI Act.35 Information which would found an action for breach of confidence is, with some exceptions, exempt from release. The exemption will not apply to information which is contractually confidential unless it also meets the above criteria for a breach of equitable confidence.

3.3. Cabinet Documents and Cabinet Information

The Constitution of Queensland 2001 states that there must be a Cabinet, which is collectively responsible to the Parliament; it consists of the Premier and a number of other Ministers. Because of the sensitive nature of the matters that go to Cabinet, and the discussions which take place regarding those matters, there are specific rules which protect Cabinet Documents. These rules are set out in the Cabinet Handbook and are reflected in the exemption provisions of the RTI Act, which provides that Cabinet Documents are exempt from release. Cabinet documents There is no limit on the type of document which can be a Cabinet document. The only requirement is that it is a document which, if disclosed, would:

reveal any consideration or deliberation of Cabinet; or

otherwise prejudice the confidentiality of Cabinet considerations, deliberations or operations.

35 Item 8, Schedule 3.


Premature disclosure of Cabinet information can have serious ramifications for the State and unlawful disclosure of Cabinet documents or information may constitute an offence under the Criminal Code 1899 or the Public Sector Ethics Act 1994, or constitute corrupt conduct under the Crime and Corruption Act 2001. Disclosure of Cabinet Documents Only the Cabinet Secretary can authorise the administrative release of Cabinet Documents. Under the RTI Act36, Cabinet documents are exempt from release. Some Cabinet documents, however, are periodically released by Cabinet on the RTI Cabinet website. They can be searched or browsed by date or by topic.

3.4. Secrecy Provisions

Section 85 of the Criminal Code 1899 relates to official secrets: If you are a public officer with a duty to keep information or documents secret and you unlawfully publish or communicate them you commit a misdemeanour punishable by up to two years imprisonment. There are also secrecy provisions in other Acts, such as the Aboriginal and Cultural Heritage Act 2003, the Adoption Act 2009 and the Child Protection Act 1999. While these Acts may apply only to certain departments, specific secrecy provisions within them have been recognised by Parliament in the RTI Act as grounds to exempt information from release because it would be contrary to the public interest for this information to be disclosed. These provisions37 are set out in Appendix 4. It is important to be aware of any specific secrecy provisions that relate to your agency or are otherwise relevant to your work.

3.5. Information Security Classification

Information Standard 18: Information Security (IS18) requires agency information to be classified and controlled in accordance with the Queensland Government Information Security Classification Framework (QGISCF). The QGISCF is intended to encourage a consistent approach to information sharing. It requires all agencies to:

determine the appropriate security classifications for information

apply controls to information which reflects its security classification ; and

keep a register of security classified information.

36 Item 1 and 2, Schedule 3, RTI Act. 37 Item 12, Schedule 3, RTI Act.

http://rti.cabinet.qld.gov.au/


The QGISCF creates classifications for government information. Information is generally classified into:

PUBLIC

UNCLASSIFIED (optionally X-USE-ONLY)

X-IN-CONFIDENCE, for example cabinet-in-confidence

PROTECTED

HIGHLY PROTECTED

Generally, information classified X-IN-CONFIDENCE and higher should not be considered for disclosure outside of the RTI process. Note that while information of this kind may be applied for under the RTI Act it may be exempt from release. PUBLIC information can be considered for disclosure in accordance with your agency’s administrative access scheme and any specific legislative requirements. Some UNCLASSIFIED material may be suitable for administrative release and some may require an RTI application to be made.

For more information please see the Queensland Chief Government Information Office website at www.qgcio.qld.gov.au

3.6. Intellectual Property and Information Licensing

Copyright

Copyright is a series of rights which may only be exercised by the owner of copyrighted material; these rights are set out in the Copyright Act 1968 (Cth) and include the right to copy, reproduce or communicate the work or to publish it online. Information Standard 46 – Use of Copyright Materials (IS46) sets out the rules for Queensland Government’s use of copyright materials. IS46 requires each agency to have a copyright policy which you can consult for more information. Under section 183(1) of the Copyright Act 1968 (Cth) the use of copyright material by the State in the service of the State does not infringe copyright, however:

Only core departments and entities representing, or authorised in writing by, core departments are able to rely on this exception.


Service of the State will generally include any act done for the purpose of performing a duty or exercising a power imposed upon the department by legislation or by prerogative.

It does not include the use of copyrighted material by a State run educational institution for educational purposes.

There are things the State must do if it relies on this exception:

If the copyright owner has nominated a copyright collection society the department should pay them ‘equitable remuneration’ for the use of the copyrighted work.

If not, the department must tell the copyright owner about the use and provide them with as much information as they reasonably require unless it is not in the public interest to do so.

Information Licensing Framework The Australian Governments Open Access and Licensing Framework (AusGOAL) promotes open access to, and re-use of, publicly funded information. The objectives of AusGOAL are therefore consistent with, and facilitate the proactive release of, information as required by the RTI Act. The framework:

encourages open access to public sector information

enhances the ability to share information within government and with the community; and

reduces the complexity of information management by adopting clear processes and a simple licensing system utilising Creative Commons.

The original framework, QGILF, was adopted in 2009. In 2011, AusGoal was launched, which builds on QGILF and reflects a move towards national consistency and a greater emphasis on open access.

For more information see the Queensland Government Chief Information Office website at www.QGCIO.qld.gov.au and the AusGOAL website at www.ausgoal.gov.au.


Trade Secrets

A trade secret is a specific sort of confidential information. It will generally be a formula, practice, process, or design which is secret (or if not secret, is not generally known or reasonably ascertainable) that allows a business to obtain or maintain an economic advantage. Factors that have been accepted as being indicative of information that constitutes a trade secret include the:

extent to which the information is known outside the business

extent to which the information is known by employees and others involved in the business

measures taken to guard the secrecy of the information

value of the information to the business and its competitors

amount of effort or money spent by the owner in developing the information; and

ease or difficulty with which the information could be acquired or duplicated. 38

Trade secrets should not generally be disclosed to anyone but the owner of the trade secret unless the law requires it. If a third party is seeking access to trade secrets held by an agency they should make an application under the RTI Act. The fact that information is a trade secret is a factor under the RTI Act to be considered by the decision maker when making an access decision. 39

3.7 Defamation and defences

Defamation occurs when information is published which means it has been communicated to a third party. The information will be defamatory if it could:

injure the reputation of the individual by exposing them to hatred, contempt or ridicule

cause people to shun or avoid the individual; or

lower the individual’s estimation by right thinking members of society.

Publication in the context of defamation could include giving documents or information held by government to a member of the public. The Defamation Act 2005 contains a number of defences; those which are relevant to the public service have been listed in Appendix 3. There

38 The American Restatement of the Law of Torts (1939, Volume 4) which was relied on by Gowan J in Ansell

Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd (1967) VR 37. 39 Schedule 4, Part 4, Item 7 of the RTI Act.


are also specific defences in the RTI Act and the IP Act for information released in the genuine belief that access was required or permitted under those Acts. If you have concerns about the material you are considering releasing you should consult your agency’s legal team.

3.8 Legal professional privilege

Legal professional privilege protects from disclosure communications between a lawyer and their client made either:

for the dominant purpose of seeking or providing legal advice, or

for use in existing or anticipated legal proceedings.40 The purpose of legal professional privilege is to encourage full and frank disclosure by clients to their lawyers and thereby serves the public interest in the administration of justice.41 It applies to communications between agency officers and both their internal legal officers and external legal providers.

Waiver of privilege

A document that records the details of privileged communications between a client and legal adviser is protected from disclosure unless the privilege has been waived. Privilege can be waived if details of privileged communications are communicated in a way that is not in keeping with their confidentiality. It does not require an intention to waive privilege; it can be waived accidentally. If privilege is waived, the communication (in any form) is no longer protected from disclosure. It is easy to waive privilege. Statements such as ‘we have instructed our lawyers to vigorously defend the claim and they have advised that the plaintiff’s claim will not succeed’ have been held by the courts as sufficient.42 You should take great care with documents or information which may be subject to legal professional privilege, including referring to legal advice or communications in the reasons for a decision. If you are unsure whether a document contains privileged information you should consult with your agency’s legal counsel or the lawyer with whom you have been dealing before referring to or providing copies of the document.

40 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR

49, 64 [35] (Esso). 41Esso, 64 [35] 42 Switchcorp Pty Ltd v Multiemedia Limited [2005] VSC 425


Index

Administrative access schemes, 7

Administrative decision, 21

Administrative hearing, 23

Aggrieved by a decision, 21

Auditor-General, 3, 13, 14

Ausgoal, 32

Australian Governments Open

Access and Licensing Framework,

32

Business affairs, 21

Cabinet, 4, 9, 12, 22, 29, 30, 37

Cabinet Documents, 29

Cabinet Handbook, 29

Cabinet Information, 4, 29

Chief Procurement Office, 18

Civil proceeding, 15, 42

Code of Conduct, 6, 24, 39

Confidentiality, 23, 25, 28, 29, 34, 39

Constitution of Queensland 2001, 29

Contrary to the public interest

information, 9

Copyright, 31

Copyright Act 1968 (Cth), 31

Coroner, 17

Coroners Act 2003, 3, 17

Court proceeding, 3, 15

Courts, 15, 17

Crime and Corruption Act 2001, 16,

30

Crime and Corruption Commission,

16, 41

Criminal Code 1899, 30

Criminal Practice Rules 1999, 15

Defamation, 4, 33, 42, 43

Defamation Act 2005, 33

Disclosure, 4, 17, 20, 25, 27, 30, 44

Disclosure Log, 20

Electronic information, 5

Electronic Transactions

(Queensland) Act 2001, 5

Ethics principles, 38

Evidence Act 1977, 15

Evidence Regulation 1993, 15

Exempt information, 9

External Review, 14

Fidelity, 4, 24

Information Standard 44—

Information Asset Custodianship,

5

Information Commissioner, 1, 2, 3,

9, 10, 11, 14, 20

Information Licensing, 4, 32

Information Privacy Act 2009, 1, 3,

11, 14, 24, 27

Information Standard 18: Information

Security, 30

Information Standard 33, 3, 18

Information Standard 46 – Use of

Copyright Materials, 31

Intellectual Property, 4, 31

Judicial Review Act 1991, 21

Justices Act 1886, 16


Legal professional privilege, 4, 34

Ministerial Guidelines – Operations

of Publication Schemes and

Disclosure Logs, 20

Natural justice, 22

Information Security Classification,

30

Notice of Non-party Disclosure, 15

Personal affairs, 21

Personal information, 4, 27

Public interest disclosure, 25, 26, 40,

41

Public Interest Disclosure Act 2010,

25

Public Records Act 2002, 3, 11, 12

Public Sector Ethics Act 1994, 6, 24,

30, 38

Public Service Regulation 2008, 3,

17, 18

Publication Scheme, 9, 10

QGILF, 32

Queensland Audit Office, 3, 13

Queensland Civil and Administrative

Tribunal, 15

Queensland government structure,

37

Queensland Ombudsman, 3, 13

Queensland Public Sector Code of

Conduct, 4, 24

Queensland State Archives, 11, 13

Restricted Access Period, 12

Retention and Disposal Schedule,

11, 12

Right to Information Act 2009, 1, 3,

5, 8, 14

Secrecy Provision, 30, 31

State Archives, 11

State Procurement Policy, 4, 18, 19

Statement of Reasons, 21, 22

Subpoena, 13, 15

The Executive, 37

The Judiciary, 37

The Parliament, 37

The Public Service, 38

The use of copyright material, 31

Trade Secrets, 33

Uniform Civil Proceedings Rules

1999, 15

Westminster System, 37


Appendices

Appendix 1: The Ethical Environment of the Public Service Agency Structure of the Queensland government43 Queensland is a Westminster System of government with a partial separation of powers. The three branches of government—the Parliament, the Executive and the Judiciary—are not entirely separate as members of the executive are also members of the legislative. The roles of each branch are set out below. The Parliament:

is the assembly of elected representatives (the Legislative Assembly)

holds ultimate authority within the Westminster system of government

is the forum for debating and passing laws which represent the will of the electorate.

The Executive:

exercises the executive power of the State

formally consists of the Governor and the Ministers—known as the Executive Council

includes Cabinet, which consists of the Premier and all the Ministers. It is an essential element of the executive because it “determines government policy in all areas of public administration and exercises overall control of government activity44’. The Constitution of Queensland Act 2001 gives legal effect to Cabinet.

includes the public service, which is divided into departments and other entities. Each department is responsible for the administration of a series of Acts and reports to its Minister(s). The Administrative Arrangements Orders45 set out which departments are responsible for which Acts.

The Judiciary:

is the judicial branch of government consisting of judges, magistrates and other judicial officers. Its members do not have concurrent roles in either of the other branches of government.

is responsible for the administration of justice.

interprets the words the Legislative Assembly uses in its legislation to determine the law.

43 Parliament and Government in Queensland

<http://www.parliament.qld.gov.au/documents/Explore/Education/informationBooks/LevelThreeBook.pdf> 44 Page 125, The Fitzgerald Inquiry Report, Fitzgerald 1989 45 <http://www.qld.gov.au/about/how-government-works/structure-changes/>


The Public Service The public service is part of the executive branch of government and is subject to ethical obligations which apply to all of a PSE’s duties and responsibilities. There are four ethics principles which form the basis of your ethical obligations46. These obligations apply to your implementation of the Queensland Government’s information sharing policy and the accompanying legal and policy framework that governs information held by Queensland government.

1. Integrity and impartiality—you:

are committed to the highest ethical standards

accept and value your duty to provide objective, independent, apolitical and impartial advice

show respect towards all persons, including employees, clients and the general public,

acknowledge the primacy of the public interest and undertake to resolve or manage conflicts in favour of the public interest

are committed to honest, fair and respectful community engagement.

2. Promoting the public good—you:

accept and value your duty to be responsive to both government requirements and the public interest

accept and value your duty to engage the community in developing and effecting official public sector priorities, policies and decisions

accept and value your duty to effectively, efficiently and economically manage public resources

value and seek to achieve excellence in service delivery

value and seek to achieve enhanced integration of services to better service clients.

3. Commitment to the system of government—you:

accept and value your duty to uphold the system of government and the laws of the State, the Commonwealth and local government

are committed to professionally and impartially effecting official public sector priorities, policies and decisions

accept and value your duty to operate within the framework of Ministerial responsibility to government, the Parliament and the community.

4. Accountability and transparency—you:

are committed to exercising proper diligence, care and attention; to effectively and accountably using public resources; and to

46 Public Sector Ethics Act 1994, Part 3


managing information as openly practicable within the legal framework.

value and seek to achieve high standards of public administration and to innovate and continuously improve performance

value and seek to operate with a framework of mutual obligation and shared responsibility between public service agencies and public officials.

In relation to Accountability and transparency above, section 4.4 of the Queensland Government Code of Conduct For the Queensland Public Service includes the following:

4.4 Ensure appropriate use and disclosure of official information The public has a right to know the information that is created and used by the government on their behalf. This right is balanced by necessary protections for certain information, including personal information. Information privacy legislation protects against the misuse of personal information and we have an obligation to ensure the lawful collection and handling of personal information. In addition, we will: a. treat official information with care and use it only for the purpose for

which it was collected or authorised b. store official information securely, and limit access to those persons

requiring it for legitimate purposes, and c. not use confidential or privileged information to further personal

interests. We will continue to respect the confidentiality of official information when we leave public service employment.


Appendix 2: Public Interest Disclosures About what can a public interest disclosure be made? Public interest disclosures may be made about:

1. A substantial and specific danger to the health or safety of a person with a disability.

2. The commission of an offence against a provision of, or the contravention of a

condition imposed by, the Acts listed in Schedule 2 or the PID Act if the commission or contravention presents a substantial and specific danger to the environment. The Acts are the:

Aboriginal Cultural Heritage Act 2003

Environmental Protection Act 1994

Fisheries Act 1994

Forestry Act 1959

Greenhouse Gas Storage Act 2009

Land Act 1994

Mineral Resources Act 1992

Nature Conversation Act 1992

Petroleum Act 1923

Petroleum and Gas (Production and Safety) Act 2004

Queensland Heritage Act 1992

Torres Strait Islander Cultural Heritage Act 2003

Transport Operations (Marine Pollution) Act 1995

Water Act 2000

3. The conduct of another person which could, if proved, be corrupt conduct or maladministration that adversely affects a person’s interest in a substantial and specific way.

4. A substantial misuse of public resources—this does not include alleged misuse

based on policy disagreements about amounts, purpose or priorities of expenditure.

5. A substantial and specific danger to public health or safety.

6. A substantial and specific danger to the environment.


To whom may a public interest disclosure be made? The PID Act sets out the people and entities to which a public interest disclosure can be made.

How can a public interest disclosure be made? A public interest disclosure may be made anonymously. If the authority to which the public interest disclosure is being made has a set procedure for making such disclosure, you should follow it. However, if making the public interest disclosure to a public sector entity, it may be made as follows.

Type of entity To whom a PID can be made

Any public sector entity Its chief executive officer. An officer with the function of receiving or taking action on the type of information being disclosed.

Departments The Minister responsible for its administration.

Any public sector entity with a governing body.

A member of the governing body.

If you are an officer of the entity to which the information is being disclosed

Any person who directly or indirectly supervises or manages you.

Type of disclosure Entity Limitations

If the disclosure does not relate to a judicial officer.

A member of the Legislative Assembly

A specific Public Sector Entity

Only if you honestly believe that the information relates to:

the conduct of the entity or any of its officer

anything the entity has the power to investigate or remedy

an alleged reprisal against a person who made a previous disclosure.

If the disclosure does relate to a judicial officer

The Chief Judicial Officer of the relevant court or tribunal

The information relates to an alleged reprisal or corrupt conduct.

All other information that could found a PID.

The Crime and Corruption Commission

Only if the information relates to an alleged reprisal or corrupt conduct.


Appendix 3: Defences in the Defamation Act Absolute privilege: It is a defense to a claim of defamation that information was published in a situation considered to be an ‘occasion of absolute privilege’. Occasions of absolute privilege arise:

in the course of the proceedings of a parliamentary body in the course of an Australian court or tribunal proceeding in situations deemed to be occasions of absolute privilege in an another

Australian jurisdiction. Publication of public documents: It is a defense to defamation that information was contained in a public document or a copy, summary or extract of a document. This defense can only be defeated if it can be shown that the information was not published honestly for the information of the public of the advancement of education. A public document includes:

any report, record or paper of, or published by, Parliament

any civil proceeding judgment, order or other determination of a court or arbitral tribunal of any country

any report or document authorised to be published, or required to presented to or before a parliamentary body, under the law of any country

any document issued for the information of the public by any level of government of any country, or its officer, employee or agency

any record or other document kept open for public inspection by, or under a law of, an Australian jurisdiction, by statutory authority of an Australian Jurisdiction, or under legislation of an Australian jurisdiction.

any document considered to be a public document in another Australian jurisdiction.

Fair report of proceedings of public concern: It is a defense that information was, or was contained in, a fair report of any proceedings of public concern. This defense will fail if it can be shown that the information was not honestly published for the information of the public or the advancement of education. Proceedings of public concern include any public proceedings of:

a parliamentary body

an international organisation, or the governments, of any country

an international conference at which the governments of any countries are represented


the International Court of Justice, or any other judicial or arbitral tribunal, for a decision in relation to a dispute between nations or any other international judicial or arbitral tribunal

a court or arbitral tribunal of any country

an inquiry held under the law of, or under the authority of the government of, any country

a local government body of any Australian jurisdiction

shareholders of a public company under the Corporations Act held anywhere in Australia, or

a law reform body of any country. A full list is contained in Part 4, Division 2 of the Defamation Act 2005.


Appendix 4: Secrecy provisions

Secrecy provisions contained in Schedule 3, item 12 of the RTI Act.

Provision Act Limitations

s. 29(2) Aboriginal Cultural Heritage Act 2003

s. 314 Adoption Act 2009

s. 53 Auditor General Act 2009

ss. 19, 20 Australian Crime Commission (Queensland) Act 2003

To the extent they apply to a summons or notice that includes a notation under section 21.

ss. 186-188

Child Protection Act 1999

s. 41 Child Protection (Offender Prohibition Order) Act 2008

s. 70 Child Protection (Offender Reporting) Act 2004

s. 239 Financial Intermediaries Act 1996

s. 85 G20 (Safety and Security) 2013

s. 288 Juvenile Justices Act 1992

s. 129 Maintenance Act 1965

s. 65(1) Public Interest Disclosure Act 2010

Part 8 Taxation Administration Act 2001 So far as it applies to personal confidential information under that Act.

s. 29(2) Torres Strait Islander Cultural Heritage Act 2003

Part 9, Div 2

Transport (Rail Safety) Act 2010

ss. 36, 38 Witness Protection Act 2000