A chance for Queensland to capitalise on national and international developments in privacy law

On 13 December 2016, the Queensland Government announced a review of Queensland’s privacy and right to information legislation. The review aims to determine whether the primary purposes of the Information Privacy Act 2009 (Qld) (IP Act) and the Right to Information Act 2009 (Qld) (RTI Act) remain valid and whether the Acts achieve those purposes.

The review also aims to capitalise on developments around the world with respect to privacy protection and information management. Unlike the Commonwealth Privacy Act, which underwent substantial reforms in 2014, the IP Act and the RTI Act have not been substantially amended since their commencement in 2009.

The Queensland Office of the Information Commissioner is seeking submissions from interested parties, including on the issues outlined in a consultation paper published by DJAG (available here). The questions canvassed by the Review are included in the pdf of this article (click on ARTICLE PDF above).

Submissions are due by 3 February 2017.

QUEENSLAND PRIVACY LAW

Should the IP Act align with the Commonwealth Privacy Act?

The Privacy Act 1988 (Cth) contains one set of Australian Privacy Principles (APPs) that apply to both Commonwealth government agencies and the private sector, whereas the IP Act contains two sets of privacy principles: the National Privacy Principles (NPPs) (for health agencies), and the Information Privacy Principles (IPPs) (for all other Queensland government agencies).

The APPs provide stronger privacy protections than the IP Act (and the IPPs and NPPs), particularly regarding direct marketing and the handling of unsolicited information and sensitive information.

The Australian Law Reform Commission’s 2008 report into privacy laws recommended that the Commonwealth and all States and Territories adopt one set of privacy principles to reduce compliance burdens and improve efficiencies. It noted that this might also help individuals to better understand their privacy rights and would also benefit organisations who operate in multiple jurisdictions.

The Review asks whether the IPPs and NPPs could be combined and replaced with principles that reflect the APPs under the Commonwealth Privacy Act and the Review seeks feedback as to the advantages and disadvantages of this approach.

Similarly, the Review asks whether the definition of ‘personal information’ should be updated to adopt the Commonwealth definition, which uses “more modern terminology”.

Should sharing information within government be a ‘use’ instead of a ‘disclosure’?

The IP Act currently sets out different principles for the use and disclosure of personal information. As noted in the Consultation Paper, there are situations where individuals would prefer their personal information to be shared between agencies, rather than having to provide the same personal information to multiple agencies.

The Review seeks feedback as to whether the IP Act currently unreasonably prevents the sharing of personal information between Government agencies. In order to strike a balance between duplicating the provision of information, but also ensuring that it can only be shared for the purpose for which it was collected or a directly related purpose, the Review seeks feedback on whether any sharing of personal information between Government agencies should only be considered a ‘use’ and not a ‘disclosure’.

Embracing the use of the cloud – where should overseas disclosure requirements land?

The IP Act currently sets out the circumstances in which personal information may be transferred outside of Australia. However, since the IP Act commenced in 2009 there have been significant technological advancements including the increased use of CCTV, drones, wearable and other “Internet of Things” devices which may collect, process and store personal information. Cloud computing is also now widespread, facilitating the transfer and storage of personal information outside Australia. Further, the Government increasingly engages with the community through overseas hosted social media platforms. The Review asks whether there are concerns with the current approach under the IP Act for transfer of personal information outside Australia.

Protecting information from loss and misuse – what should be expected of agencies?

Currently, agencies must ensure that personal information is protected from loss and misuse. However, under equivalent Commonwealth legislation, APP entities are only required to “take reasonable steps” in that regard. A 2013 review of the IP Act found strong support to amending this to require agencies to take reasonable steps, and the Review seeks feedback on this position.

Should the IP Act apply to Government Owned Corporations and agency sub-contractors?

One of the questions the Review asks is the extent to which the IP Act should apply to Government Owned Corporations (GOCs) and contracted service providers.

In the course of deciding whether GOCs should be bound by the IP Act or the Privacy Act 1988 (Cth), the Consultation Paper notes that Commonwealth privacy legislation may give individuals a “higher level of privacy protection” than under Queensland’s IPPs.

In relation to contracted service providers, the IP Act requires a Government agency to take reasonable steps to ensure that a contracted servicer provider complies with the IPPs and NPPs (as applicable to the agency), but does not otherwise require an agency’s sub-contractors to comply with the IP Act. The Review seeks feedback as to whether the IP Act adequately deals with obligations for contracted service providers, and whether the privacy obligations under the IP Act should extend to sub-contractors of Queensland government agencies.

QUEENSLAND RIGHT TO INFORMATION LAW

Should the RTI Act apply to documents of contracted service providers performing functions on behalf of government?

The Review asks whether the RTI Act should be expanded to apply to non-government agencies that have access to and create documents in the course of providing services to Government agencies. This would mean that such non-government agencies would need to comply with the RTI Act including processing RTI applications and publishing publication schemes.

Alternatively, the Consultation Paper seeks feedback as to whether the approach under the Commonwealth Freedom of Information Act, which requires contracted service providers to provide any requested documents to the Government agency to process an application, should be adopted.

Are the categories of exemptions satisfactory?

The RTI Act provides individuals with a right to access documents of an agency or Minister but excludes some information from release. Queensland has 14 categories of exempt information, including budgetary information for local governments, information subject to legal professional privilege, national or state security information and information where disclosure would found an action for breach of confidence. Access may be refused to exempt information, however agencies and Ministers have a discretion to release it.

The Review asks whether additional exemptions from disclosure should be incorporated in the RTI Act, or alternatively whether there should be fewer exemptions.

Should changes be made to the public interest balancing test (PIBT)?

Government agencies are not required to release documents if, on balance, it is contrary to the public interest to provide such access. The RTI Act contains a detailed process outlining how decision makers should apply the PIBT, which involves comparing factors for and against disclosure and disregarding irrelevant factors. Schedule 4 of the RTI Act sets out 55 examples of the factors to be considered or disregarded. Importantly, this is not an exhaustive list, and new factors may be considered at any time. By way of contrast, the Commonwealth Freedom of Information Act sets out only eight example factors and otherwise allows the Information Commissioner to promulgate guidelines on the issue.

Given the complexity of applying the PIBT, the Review asks whether the PIBT should be simplified, and whether changes should be made to the public interest factors that are used in the decision-making process. A 2013 review of the RTI Act found that there was strong support for simplifying the PIBT.

Who should the RTI Act apply to?

Currently under the RTI Act, some but not all Government Owned Corporations (GOCs) are required to comply with the RTI Act. The Consultation Paper asks whether the way the RTI Act applies to GOCs should be changed, and notes that an obligation to comply may increase the compliance burden for GOCs, particularly those established and operated as commercial businesses.

Other issues in the Review

The Consultation Paper also discusses other procedual matters regarding appeals from the Office of the Information Commissioner decisions, the powers of the Office of the Information Commissioner and, under the RTI Act, the requirements for schedules of documents and disclosure logs.

Making a submission

Submissions can be made up to and including 3 February 2017, either by email to FeedbackRTIandprivacy@justice.qld.gov.au or by post to “RTI and Privacy Review” at DJAG’s address.

What happens next?

All submissions will be considered as part of the Review. A report will be tabled in Parliament on the Review.