PRIVACY ACT OR RIGHT TO INFORMATION ACT

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					                                                                Exempt information                            5
Sovereign communications



                      In this section:

                          1.0     Overview
                          2.0     The exemption
                                  2.1     Relevant terms
                          3.0     Application of the exemption




    1.0      Overview

               The Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy
               Act 2009 (IP Act) recognise that information which reveals communications
               between the Sovereign and certain people is exempt from disclosure.

               Schedule 3, section 5 of the RTI Act provides that information revealing
               communications between the Sovereign and her representative, or between
               the Sovereign or the representative and the Premier of Queensland is exempt
               information.

               Exempt information is information, the disclosure of which Parliament has
               decided would, on balance, be contrary to the public interest. Access to
               exempt information can be refused under section 47(3)(a) of the RTI Act. 1

               The RTI Act is not however, intended to prevent or discourage the giving of
               access to exempt documents. 2 In practice, it remains open to an agency or
               Minister to make the decision to give access under the RTI Act to exempt
               documents sought in an access application. 3 The agency discretion to give
               access to exempt information supports the pro-disclosure bias of the RTI Act.

               This guideline:
                  • examines the meaning of key terms such as Sovereign, Sovereign’s
                    representative, communications and
                  • suggests types of documents which may be caught by this exemption.


    2.0      The exemption

               Schedule 3, section 5, of the RTI Act provides:

                  5       Information revealing particular Sovereign communications


1
  Section 67(1) of the IP Act provides that grounds for refusal apply in the same way and to the same extent as under
section 47 of the RTI Act.
2
  Section 4(2) of the RTI Act.
3
  Section 48(3) of the RTI Act.



                    Office of the Information Commissioner (Queensland)                                   1
                                                             Exempt information                          5
Sovereign communications

                         Information is exempt information if its disclosure would reveal-

                           (a)        any communications between the Sovereign and the Sovereign’s
                                      representative; or
                           (b)        any communications between the Sovereign, or the Sovereign’s
                                      representative, and the Premier.



              This section is new in the Australian context, as there is no equivalent provision
              in the access to information legislation in force nationally or in other States and
              Territories. There was no equivalent section in the repealed Freedom of
              Information Act 1992 (Qld) (repealed FOI Act).             The Solomon Report 4
              recommended that such an exemption be included in order to maintain the
              constitutional convention that protects confidentiality of communication by or
              with the Sovereign or her representative.

              Parliament has decided that if the exemption is made out it would on balance
              be contrary to the public interest to release this type of information. This
              means there is no need to separately consider the public interest balancing
              test. Any information which falls into either paragraph (a) or (b) is caught by
              the exemption. However this is in the context of the pro-disclosure bias
              outlined above.

              To rely on this exemption the following requirements must be satisfied:
                 • the communications to which the information relates must be between
                   the Sovereign and the Sovereign’s representative, or the Sovereign or
                   the Sovereign’s representative and the Premier; and
                 • disclosure of the information would reveal those communications.


    2.1.    Relevant terms

    2.1.1   Meaning of Sovereign

              The application of this exemption is limited to information about
              communications written or received by the Sovereign and her representative
              and the Premier.

              The term Sovereign is not defined in the RTI Act and should therefore be given
              its ordinary meaning.


                     Definition
                     The Macquarie Dictionary defines sovereign as: 
                      

                         1.   a monarch; a king or queen. 



4
 The Right to Information: Reviewing Queensland’s Freedom of Information Act: The Report by the FOI Independent
Review Panel, June 2008, Recommendation 37, pp128-129.



                                 Right to Information and Privacy Guidelines                         2
                                                             Exempt information                           5
Sovereign communications



              This definition is supported by the Acts Interpretation Act 1954 (Qld) which
              refers to the Sovereign in the same capacity as Her Majesty, His Majesty, the
              Queen, the King and the Crown, so that these terms are intended to have a
              common meaning. 5 The Constitution of Queensland 2001 (Qld) section 4
              states that a reference in that Act to the Sovereign is a reference to the
              Queen or King for the time being, and if necessary includes the Queen’s or
              King’s heirs and successor.

    2.1.2   Meaning of representative

              The Australia Act 1986 (Commonwealth)                       provides     that    the   Queen's
              representative in each State is the Governor. 6

              Although the Solomon Report 7 makes reference to the Governor as the
              Queen’s representative, the legislation does not use the term ‘Governor’ but
              ‘representative’. A wider category of people could be caught by this term.
              For instance it is anticipated that a member of the Royal Family could be the
              Queen’s representative for a particular visit to Queensland. Alternatively, it
              may be that in particular circumstances the Queen’s representative could
              refer to the Governor-General (for instance in relation to events that may be
              Queensland based at which the Governor-General is to be present).

              In effect then, this exemption can only apply to information relating to
              communications between the Queen, members of the Royal Family acting for
              the Queen, the Governor, the Governor-General and the Premier.

    2.1.3   Meaning of communications

              The term communications is not defined in the RTI Act and should be given its
              ordinary meaning.

              In the context of Schedule 3, section 5, communications is taken to denote the
              means by which information is imparted, conveyed, sent or transmitted. 8

              The exemption applies to any communications. This includes:
                  • formal correspondence
                  • information relating to records of telephone conversations
                  • meeting notes and any other information reflecting discussions between
                    the Queen, and her representatives, or the Queen or her representatives
                    and the Premier.




5
  Section 52 of the Acts Interpretation Act 1952.
6
  Section 7 of the Australia Act 1986 (Commonwealth).
7
  The Right to Information: Reviewing Queensland’s Freedom of Information Act, The Report by the FOI Independent
Review Panel, June 2008.
8
  As defined in the Macquarie Dictionary.



                   Office of the Information Commissioner (Queensland)                                3
                                                   Exempt information                        5
Sovereign communications




                     NOTE
                     Under Schedule 3, section 5, it is not only the
                     communications     themselves       that    are
                     exempt from disclosure – any information
                     that reveals those communications is also
                     exempt.


 3.0    Application of the exemption

         As well as applying to the content of communications this exemption applies
         to information which, if disclosed, would reveal any communications. This
         means it also applies to information about the existence of the communication
         or information that refers to those communications. (see examples below).



            Examples
            A  memo  which  refers  to  discussions  between  the  Premier  and  the  Governor 
            about the recipients of Queensland Day awards. 
             
            An  email  attachment  which  contains  the  dates  of  all  letters  sent  from  the 
            Governor to the Queen. 
             
            An  agenda  of  a  private  meeting  between  the  Queen  and  the  Governor  or  the 
            Queen (or the Governor) and the Premier. 
             
            A diary entry reflecting the timing of a royal visit.  
             
            A note confirming the Governor’s attendance at an official ceremony.   




 4.0    Disclaimer

         This guideline provides information on the application of schedule 3, section 5
         of the RTI Act. It is intended to provide guidance to decision makers when
         they are considering the application of this exemption to information sought in
         an access application.


                        Right to Information and Privacy Guidelines                      4
                                                     Exempt information                        5
Sovereign communications




            This guideline is also designed to assist applicants in understanding the
            requirements of the exemption and how it applies to particular information.

            This guideline 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
                                  feedback@oic.qld.gov.au




                                    Last updated 6 January 2010
          Changes to legislation after the above date are not included in this document.




                Office of the Information Commissioner (Queensland)                        5

				
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