Freedom of information officers immune from scrutiny themselves

The public servants who decide whether to release secret government papers under freedom of information laws are protected from being scrutinised themselves.

Public servants who decide whether to release secret government papers under the state’s freedom of information laws are shielded from having their own actions scrutinised under the same laws.

The secrecy veil comes after a court case involving former controversial Chief Justice Tim Carmody and his fight to stop documents being made public following a bitter falling-out in the judiciary.

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It has led to staff responsible for deciding whether thousands of government documents see the light of day each year under the state’s version of the laws, the Right to Information Act, claiming they are immune from themselves becoming the subject of RTI requests.

While the laws have a pro-disclosure bias, exemptions can be used to refuse requests.

The Carmody case means RTI officers’ handling of RTI requests is now carried out in secret.

It was mostly recently used to block an RTI request by The Courier-Mail to examine whether police RTI officers were obstructing requests for documents on potential systemic issues.

The police blocked the request in April, arguing RTI officers were off-limits under the laws and citing the 2018 Carmody case in the Queensland Civil and Administrative Tribunal.

In that decision, Justice Clifton Hoeben favoured the view that RTI officers were out of reach of RTI requests as they were “connected to” a quasi-judicial office.

The Tribunal case had been brought by Justice Carmody, who had been the subject of multiple RTI requests amid a rift in the judiciary over his controversial rise to the state’s top judge in 2014 under the former Newman administration before his resignation from the job a year later.

He won the legal battle in 2018 to block a decision by the state’s RTI disputes body to release documents held by a State Government department’s RTI officers to the Seven Network.

Tim Carmody while serving as chief justice

Seven had lodged an RTI request to lift the lid on deliberations behind an earlier refusal by RTI officers to release documents relating to Justice Carmody.

The latter RTI request turned up papers, including a one-page file note prepared by the department’s RTI decision maker on her meeting with Supreme Court judge John Byrne.

Justice Byrne made headlines for secretly recording a meeting with Justice Carmody in 2015.

Justice Carmody argued in the Tribunal that the documents should be out of reach of RTI laws as RTI officers’ roles were “connected with” the state’s RTI umpire, the Office of the Information Commissioner, which is exempt from the laws as it is a quasi-judicial body.

RTI officers were connected in that they are required to decide RTI applications and those decisions are reviewable by the Information Commissioner, Justice Carmody then argued.

While he won the appeal on other grounds, Justice Hoeben favoured his interpretation.

The Courier-Mail this year attempted to examine why its RTI requests were being blocked by the police, but its application was rejected, with RTI officers citing the Carmody case.

It had asked for any emails relating to two rejected RTI requests.

One of the requests was for details of cases where costs had been awarded against the police over failed prosecutions.

It was knocked back in its early stages for not giving “sufficient information.”

Multiple attempts to contact police RTI unit Senior-Sergeant Elaine Burns to discuss the application received no response, despite Ms Burns initially offering to consult.

She took almost eight months to issue a refusal letter. It had by then been under review by the Information Commissioner for six months, leading to the release of the documents.

But when it comes to examining the handling of the RTI requests, the Information Commissioner has indicated her hands are tied on the issue.

After an appeal of the decision by the newspaper, Right to Information Commissioner Louisa Lynch acknowledged the “frustration about the way in which QPS handled the two applications and QPS’s lack of responsiveness.”

But she said she was unable to identify any circumstances that would persuade her that Justice Hoeben’s comments in the Carmody case should not apply. 

RTI law expert Rebecca Murray, a former Government RTI officer who now runs her won firm RTI Consultants, said it was questionable whether a broad interpretation of the section of the Act relating to quasi-judicial entities was consistent with the object of the laws.

“An RTI processing file outlines how an RTI application is managed by an agency,” she said

“It forms a vital part of the public’s right to know as it evidences whether the RTI process has been appropriately undertaken by an agency.

“For example, evidence that accurate and thorough searches for documents have been undertaken.”

Originally published as Freedom of information officers immune from scrutiny themselves