There are four types of disclosure defined in the Act. Only ‘assessed disclosures’ are governed by the Tasmanian Right to Information Act (hereinafter ‘the Tasmanian Act’):
- Required disclosures, which are required by law. Annual reports are an example;
- Routine disclosures, made by a public authority in relation to information deemed to be of public interest;
- Active disclosures, which are what disclosures made in response to a request for information placed outside the framework of the Tasmanian Act. This would include information such as an informal request over the telephone for information. An example would be phoning the Department of Premier and Cabinet and asking when the Premier’s next press meeting would be scheduled; and
- Assessed disclosures, which are disclosures assessed and made under the Tasmanian Act. This covers information in the possession of a public authority or Minister that is not otherwise available by one of the three previous types of disclosure.
Assessed disclosure is the disclosure of last resort and applications for assessed disclosure have dropped off since the Tasmanian Act commenced as most public authorities have put schemes in place to release information without the need for an application. Public authorities are required to advise the public disclosure schmes and generally do so via their websites.
Applications for assessed disclosures
Under section 7 of the Tasmanian Act, any person has a legally enforceable right to be provided with information by a public authority or Minister. This right is subject to exemptions.
Exclusions from disclosure of information requirements
Section 6 of the Tasmanian Act lists the persons or public authorities who are excluded from disclosing documents in their possession where those documents are unrelated to the administration of their role. These persons and public authorities are:
- the Governor;
- a court;
- a tribunal;
- the Integrity Commission;
- a judge;
- an associate judge;
- a magistrate;
- the Solicitor-General;
- the Director of Public Prosecutions;
- the Ombudsman;
- the Auditor-General;
- the State Service Commissioner;
- the Anti-Discrimination Commissioner;
- the Public Guardian;
- the Health Complaints Commissioner;
- Parliament; and
- a Member of Parliament.
Part 3 of the Act also list types of information which may be exempt. Exempt information falls into two categories:-
information which is exempt by nature:
- Executive Council information (s25);
- Cabinet information (s26);
- Internal briefing information of a Minister (s27);
- Information not relating to official business (s28);
- Information affecting national or state security, defence or international relations (s29);
- Information relating to enforcement of the law (s30);
- Legal professional privilege (s31); and
- Information related to closed meetings of council (s32).
And information which is only exempt if it is to the public interest to release the information, including:
- Information communicated by other States or Territories (s34);
- Internal deliberative information (draft etc) (s35);
- Personal information of a third party (s36);
- Information reated to the business affairs of a third party (s37); and
- Information related to the business affairs of a public authority.
Public interest test
The public interest test is set out at section 33 and is simply that information will be exempt if the principal officer of a public authority or a Minister considers, after taking into account all relevant matters, that disclosure is contrary to public interest, then the information is exempt from disclosure. The Public Interest test only applies to categories of information set out in Sections 34-42. That is, if the information you are requesting does not meet one of the exemptions listed in Sections 25 to 32 or Sections 34 to 42, then even if the public authority or Minsiter consider its disclosure would be contrary to the public interest to disclose the information, they must give you the information.
Schedule 1 of the Tasmanian Act contains a non-exhaustive list of matters to be considered in deciding whether disclosure is contrary to public interest. This includes matters such as promoting or harm public health or safety, or both, whether it would promote or harm the administration of justice, and whether the disclosure would be contrary to the security or good order of a prison or detention facility.
Schedule 2 sets out the matters that are irrelevant to the consideration of a decision maker in assessing whether the disclosure would be contrary to public interest. These irrelevant considerations are:
(a) the seniority of the person who is involved in preparing the document or who is the subject of the document;
(b) that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information;
(c) that disclosure would cause a loss of confidence in the government;
(d) that disclosure might cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.
Schedule 3 sets out considerations that are relevant in allowing or refusing a request. These are dissimilar to those that were contained in Schedule 1, in that the considerations are finance, time, and resource based.