Greenleaf, Graham --- "No more secrets in QLD?" [1994] PrivLawPRpr 76; (1994) 1(5) Privacy Law & Policy Reporter 96

No more secrets in QLD?

Queensland Law Reform Commission - The Freedom of Information Act 1992: Review of Secrecy Provisions Exemption, Report No 46, March 1994 s48 of the Freedom of Information Act 1992 (Qld) provides an exemption from the general obligation of disclosure where certain ''secrecy provisions' exist:

48(1) matter is exempt matter if

(a) there is in force an enactment applying specifically to matter of that kind, and prohibiting persons mentioned in the enactment from disclosing matter of that kind (whether the prohibition is absolute or subject to exceptions and qualifications); and

(b) its disclosure would, on balance, be contrary to the public interest.

(2) Matter is not exempt under subs (2) if it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to the document containing the matter is being made.

(3) This section has effect for only two years from the date of assent. However, s48 is subject to s16:

16(1) This Act is intended to operate to the exclusion of the provisions of other enactments relating to non-disclosure of information. (2) Sub-section (1) has effect subject to s48 (Matter to which secrecy provisions of enactments apply). s48 therefore ceases to have effect on 19 August 1992. All secrecy provisions will then be read and applied as subject to s16(1) of the Act, ass16(2) will no longer have any effect. The effect of s48's ''sunset clause' is to require legislative confirmation of which secrecy provisions are to prevail over the FOIA.

In its Report advising on this question, the Law Reform Commission found that, in general, the other exemption provisions in the FOIA provided sufficient protection against disclosure (and appropriate limitations) for the matters covered by the existing secrecy provisions, so the FOIA itself should set the limits for disclosure. However, in a small number of cases, the FOIA did not provide sufficient limitations. The Report includes a draft Freedom of Information (Review of Secrecy Provisions Exemption) Bill 1994 (Qld), which amends the existing s48 by deleting s48(3) (the sunset clause) and replacess48(1) with the following provision:

1. Matter is exempt matter if its disclosure is prohibited by an enactment mentioned in the Schedule unless its disclosure would, on balance, be in the public interest.

The Commission recommends that only seven enactments be included in the Schedule, including the following provisions relating to privacy (the others relate to financial matters): 1. Adoption of Children Act 1964 (Qld), s59(3), because that Act should define the means by which identifying information about the parties to an adoption should be obtained.

2. Children's Services Act 1965 (Qld), s144, to prevent ''the disclosure of sensitive information to a person suspected of child abuse or neglect'. 3. Juvenile Justice Act 1992 (Qld), s226, to prevent the disclosure of information about children subject to the Act. 4. Maintenance Act 1965 (Qld), s129, to prevent disclosure of details of a child of unmarried parents.

If the Queensland government wanted a non-disclosure provision in a future enactment to override the provisions of the FOIA it would have to amend the Schedule, because of the prospective operation of s16(1). The Commission has followed the model of the 1991 amendments to s38 of the Freedom of Information Act 1982 (Cth), which requires secrecy provisions which override the FOIA to be listed in Sch 3. However, the Queensland proposal goes further than the Commonwealth Act's s38 because (in common with other exemptions in the Queensland Act) the scheduled secrecy provisions will not prevent disclosure if ''disclosure would, on balance, be in the public interest'. The draft Bill retains s48(2), continuing the right of individuals to access information concerning their personal affairs despite any provisions in the Schedule. This is consistent with s38(2) of the Commonwealth Act, except that it uses the broader expression ''personal information' (see 1 PLPR 72).

Comment

The Freedom of Information Act 1982 (Cth), Sch 3 lists over 30 pieces of legislation as ''secrecy provisions' under s38. The history of s38, and its operation since the 1991 amendments, is analysed by Tim Moe in ''Section 38: a provision of first or last resort' (1994) 51 FOI Review 26. He argues for reform of s38 to reduce its scope, and points out that the Tasmanian Freedom of Information Act 1991 permits certain State secrecy provisions to be the basis of exemption only until 1 January 1995, and the WA Freedom of Information Act 1992does not contain any equivalent to s38

Graham Greenleaf