Title: Disclosure of Confidential Information
Category: Offender Management
Implement Date: 9 February 2011
Appendices and Forms
|PART A - GENERAL REQUIREMENTS FOR THE DISCLOSURE OF INFORMATION|
|3.||Decisions to disclose confidential information s 341(2)(3) CSA|
|4.||An informed person's obligations (as a result of information being disclosed)|
|5.||General requirements when disclosing confidential information for the purpose of collateral checks and compliance management|
|PART B - DISCLOSURE OF OFFENDER'S INFORMATION FOR THE PURPOSE OF COMMUNITY SAFETY|
|6.||Disclosure of offender's offending history and accommodation details to employers and members of the public|
|7.||Disclosure for the purpose of a person's safety and/ or the public interest|
|7.1||Examples of Proactive Disclosure|
|7.2||Examples of Responsive Disclosure|
|PART C - DISCLOSURE FOR THE PURPOSES OF CSA OR ANOTHER LAW|
|8.||Disclosure for the purposes of CSA s 341(3)(a)|
|8.1||Examples of disclosure for the purposes of the CSA|
|8.2||Example of what is not disclosure for the purposes of the Act|
|9.||Disclosure under another law under s 341(3)(b)|
|9.1||Disclosure under Family Responsibilities Commission Act 2008|
|9.3||Disclosure for a court proceeding or otherwise by law s 341(3)(c)|
|9.4||Other examples of a lawful request|
|PART D - COLLABORATION WITH PARTNERING AGENCIES AND PROBATION AND PAROLE|
|10.||Intelligence Meetings with Queensland Police|
|10.1||ANCOR Offender Co-Case Management|
|10.2||Information sharing with Child Safety Services|
|PART E - DISCLOSURE OF INFORMATION TO LEGAL PRACTITIONERS|
|11.||Disclosure of confidential information to legal practitioners|
|11.1||Disclosure of intelligence information to legal practitioners|
|11.2||Disclosure of material relevant to a breach of a community based order to legal practitioners|
|12.||Service of documents compelling the release of confidential information|
|PART F - DISCLOSURE OF OFFENDER'S LOCATION|
|13.||Disclosure of the corrective services facility in which a prisoner is being held s 341(3)(f)|
|13.1||Disclosure that an offender is under supervision in the community s 341(3)(f)|
|PART G - GENERAL|
|14.||Disclosure of confidential information when authorised by the person to whom it relates s 341(3)(d)|
|15.||Access to information by QCS staff|
|15.1||Information obtained about the criminal history of a person who is not an offender|
|15.2||Disclosure of information that may relate to the commission of an offence|
|16.||Disclosure of confidential information to offenders|
|17.||Applications under the RTI Act or the IP Act|
To ensure that Queensland Corrective Services complies with statutory requirements regarding disclosure of confidential information.
“confidential information” s341(4) of the CSA provides a comprehensive list of examples of confidential information including examples of what is not considered confidential information.
“Informed person” s341(1). A person who performs a function under the CSA or who is engaged in the administration of the CSA and /or a person who has obtained access to confidential information from any source. A corrective services officer is an informed person.
“public interest” The interests of the general community and the good order of society and the wellbeing of its members.
Corrective services officers commonly have access to and collect confidential information as a result of the discharge of the functions of the Corrective Services Act 2006 (CSA). Subsequently, the disclosure of confidential information forms a significant part of corrections practice.
The CSA s341 governs the disclosure of confidential information and confidential information must only be released in the circumstances provided for under s 341. The disclosure of confidential information outside the provisions of s341 may result in prosecution.
Confidential information does not include information which is already disclosed to the general public unless further disclosure of the information is prohibited by law (refer CSA s 341(4)).
Access to and disclosure of personal information (which falls within the definition of confidential information) is also simultaneously covered by the Right to Information Act 2009 (the RTI Act) and theInformation Privacy Act 2009 (the IP Act). In accordance with s29(1)(c) of the IP Act, Queensland Corrective Services is exempt from the information privacy principles 2, 3, 9, 10 and 11 if the personal information is to facilitate the containment, supervision and rehabilitation of offenders under the Corrective Services Act 2006 and the supervision of prisoners subject to supervision orders or interim supervision orders under the Dangerous Prisoners (Sexual Offenders) Act 2003. Furthermore, the management of personal information related to participants subject to an order under the Drug Court Act 2000 is governed by sections 39 and 39A of the Drug Court Act 2000.
Where there is any conflict, the requirements of s341 shall prevail.
The circumstances involving the need to disclose confidential information can be numerous and varied. Decisions to disclose confidential information should be given due consideration. Should an officer be uncertain of their obligations, the relevant manager should be consulted.
Decisions to disclose or not disclose confidential information must be made in accordance with s341(3), sub sections (a) through to (d) and (f), and documented as a contact summary on the offender's IOMS file. Decisions to disclose as per sub section (e) must be approved by the relevant delegate. Decisions to disclose as per Part D of this procedure should be documented in accordance with the regional process.
An informed person must obtain the details of a person making a request for information, prior to disclosing any confidential information to the person. Requests for information should be made in writing. Urgent requests may be received verbally and actioned accordingly.
Details of the person includes -
If a person obtains access to confidential information under the CSA, that person becomes and remains an “informed person”. If that person discloses confidential information to another person, that other person also becomes an “informed person” under the CSA. Both classes of persons are subject to the requirements of s 341 in dealing with the information.
Confidential information should not be disclosed to a third party unless the third party has been made aware of the above and the penalty for non-compliance. When disclosing confidential information to another person or party, the following is to be complied with if the information is provided -
Refer appendix - Statement to Informed Person
The disclosure of confidential information is often required to carry out the day to day functions of a corrective services officer. For example, disclosing an offender's name to a local service provider to follow up a referral to verify compliance or to conduct other forms of collateral checks. The CSA s341(3)(a) allows such disclosure as the verification of an offender's compliance with order conditions is for the purpose of the Corrective Services Act 2006.
The IP Act states this use of confidential information is permitted if the offender is provided the Administrative Form - Offender Privacy Statement (during the order induction) and authorised the Local Service provider to release the information by signing the Administrative Form - Authority to Collect Information from a Third Party and for Third Party to Release Information to Queensland Corrective Services. This form is best issued to the offender and signed at the point of referral.
Refer procedure - Induction.
The disclosure of an offender's offending history and accommodation details to employer's and members of the public e.g. an offender's neighbours is relevant only to offenders subject to the Dangerous Prisoners (Sexual Offenders) Act 2003.
If a circumstance arises when this form of disclosure may apply to an offender subject to another order and the other subsections of the CSA do not apply, the Information Rights Unit must be consulted prior to the release of the confidential information.
Refer procedure - Dangerous Prisoners (Sexual Offenders) Act Orders (in-confidence)
Confidential information may be disclosed if authorised by the Chief Executive or delegate because a person's life or physical safety could otherwise reasonably be expected to be endangered or it is in the public interest (see definition). These disclosures are either proactive or responsive disclosures (see 7.1 and 7.2).
If an officer is requested to provide confidential information about an offender or becomes aware of information that relates to an offender and impacts on community safety, it must be immediately referred to the attention of the Chief Executive or delegate via the officer's supervisor/manager.
If the matter relates to a Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) offender it is necessary to obtain authority to release information from Deputy Commissioner, Probation and Parole or other delegate.
If the delegate to whom the officer usually refers such matters is unavailable, another delegate should be approached to facilitate an urgent decision.
Both proactive and responsive disclosure of confidential information will often involve competing factors of ensuring the security of the community and assisting in the rehabilitation of the offender. Should there be any doubt regarding such disclosure, the Information Rights Unit is to be consulted.
Example 1: An officer supervising an offender subject to a probation order for drive under the influence of liquor receives the offender's criminal history and notes that the offender has a significant number of convictions for sexual offending against female children.
The offender subsequently advises the officer he has become involved with a single mother of two young female children. The District Manager makes a decision to disclose to the mother the offender's history of sexual offending under CSA s 341(3)(e)(i) on the basis that the woman and her children's physical safety could reasonably be expected to be endangered . As part of the case management process the offender is given the option of disclosing his offences within 24 hours to the mother before Probation and Parole intervene. The mother will be required to confirm the information to the offender's Probation and Parole officer. If the mother does not contact the offender's Probation and Parole officer within 24 hours, immediate action will be taken and the offences disclosed to the mother.
The Department of Communities is also contacted and notified of the situation under CSA s 341(3)(b) as the Child Protection Act 1999 enables that agency to intervene. This is an important step as there may already be information that the Department of Communities holds concerning the children and their general welfare.
Example 2: An offender subject to a three year Probation Order for the offence of possess child exploitation material. As part of the requirements of the offender's order he advises the Agency that he has moved address. The new residence is an apartment block that backs onto a childcare centre.
Although the risk the offender poses is assessed as minimal due to the centre being secure and the children under constant supervision, the Regional Manager authorises the disclosure of the offender's location to the centre's Director under CSA s 341(3)(e)(ii) as the Regional Manager has deemed the disclosure to be in the public interest.
Example 3: A parolee convicted of stealing as a servant has been employed by a business as a cashier, and an officer becomes aware that the parolee has not disclosed the nature of his/her conviction to the employer. In this case, a proactive disclosure under CSA s 341(3)(e)(ii) could be made by the Regional Manager to advise the employer of the risk the offender may pose to the business.
Example 4: The partner of an offender contacts an officer and expresses a grave fear for his/her personal safety after the offender makes threats against the partner's life. The matter should be immediately referred to the District Manager to decide whether the information should be provided to the police under CSA s 341(3)(e)(i).
Example 1: An offender has been admitted to a hospital for treatment and the hospital requests details of the offender's criminal history, particularly any history of offending that may put others at risk of harm. The Chief Executive or delegate can provide a summary of the offender's relevant criminal history under CSA s 341(3)(e)(i) or (ii), including any history of sexual offending, so the offender can be appropriately monitored and managed while in the hospital's care.
Example 2: A member of the public who intends to support a sex offender through accommodation or employment assistance, requests information regarding the offender's offence details. Responsive disclosure of the relevant offence details and history of information would be appropriate in this case under CSA s 341(3)(e)(ii) when made by the chief executive or delegate.
Example 3: A law enforcement agency urgently needs the home address of a staff member because they have information about an imminent threat to the safety of the officer. Disclosure would be appropriate when made by the chief executive or delegate under CSA s 341(3)(e)(i).
A corrective services officer should determine whether or not the disclosure of confidential information is “for the purposes” of the CSA.
If an officer is uncertain about whether a request has been made “for the purposes of this Act”, the officer should ask the person requesting the information to clarify how the request assists such a purpose.
If the disclosure is outside the purpose of the CSA the officer could be prosecuted for a breach of CSA s 341.
Example 1: An offender is engaged with an external services provider and the supervising officer contacts the external services provider to verify the offender's attendance and progress towards the objectives of the intervention. The supervising officer may disclose the offender's name and supervision status and details of the referral under s341(3)(a). Details not relevant to the referral are not to be disclosed.
Example 2: A supervising officer liaises with a Child Safety Agency representative regarding an offender also supervised by the Child Safety Agency. Relevant information about the offender's management such as reporting frequency, other interventions and compliance issues is shared with that agency as a means of enhancing case management and supervision of the offender and ensuring the safety of the children involved.
Example 1: Providing unsolicited advice to Centrelink that an employed offender is obtaining social security benefits. Matters relating to suspected fraud should be referred to Queensland Police.
Example 2: Advising an offender's family member or employer of the offender's response to supervision without the offender's authorisation.
A corrective services officer should determine whether the request for confidential information enables the discharge of a function under another law or is otherwise authorised under another law.
Some statutes may contain provisions that may compel the release of confidential information. For example, offenders may apply for the release of information about themselves under the RTI Act or IP Act or The Department of Communities may request information about an offender under s159 of the Child Protection Act 1999.
Such requests for information must be in writing (unless urgent requests from the Department of Communities) and should state the relevant legislative provisions that authorises the disclosure. If there is any doubt regarding whether disclosure is lawful, the Legal Services Branch should be consulted. See section 3 of this procedure.
The following documents are available to assist disclosure requirements under the Family Responsibilities Commission Act 2008 (ss 90-95)-
Refer Instrument of Delegation of Chief Executive Powers - Public Service Act 2008
9.2 Disclosure of an offender's criminal history - Criminal Law (Rehabilitation of Offenders) Act 1986.
When considering a criminal history disclosure, refer Criminal Law (Rehabilitation of Offenders) Act 1986 (CLROA) ss 3-4, 9. A criminal history disclosure must specify the legislation by which the disclosure is made as; if not, such disclosure may breach the CLROA. The contents of the disclosure must be relevant to the request.
A court appearance that is on record and publicly available and thereby likely to form part of a criminal history may be disclosed unless there is an order preventing further disclosure.
A criminal history may be included in the release of a breach pack to legal representatives for the purpose of representing an offender (see section 12.2).
Refer also the Office of the Information Commissioner's website.
An officer should determine whether the information is required to be disclosed for court proceedings, by order of the court or otherwise by law.
If a court orders the production to court of confidential information or if there is a summons or subpoena to produce documents, it is lawful to comply with the request.
Care should be taken to ensure that only documents within the scope of the subpoena are disclosed and that, if necessary, a claim of privilege made in appropriate cases. Such court process documents, including Agency intelligence information, should be referred to the Information Rights Unit.
Refer - Commissions of Inquiry Act 1950
The Information Rights Unit should be consulted in the event of any uncertainty as to the legality of a request for confidential information.
A prisoner is transferred to an authorised mental health service. To enable mental health authorities to discharge their function of protecting and treating people with mental illness, it may be appropriate to disclose relevant confidential information to the mental health authorities. Requests for such information must be in writing and should state the relevant legislative provision/s that authorise/s the disclosure.
To enable law enforcement agencies to discharge their function of investigating criminal activity and apprehending offenders, it may be appropriate to disclose relevant confidential information to such agencies under CSA s 341(3)(b) if that law enforcement agency can provide adequate reason that the information will aid their function under another law e.g. Police Powers and Responsibilities Act 2000.
A lawful written request made under the Social Security (Administration) Act 1999 to provide certain information relating to a prisoner or offender.
A court order or an order from the Crime and Misconduct Commission to produce an offender's file on a specified date should be referred to the Information Rights Unit for further advice.
Inter agency collaboration between QCS and other Government and/or non-government organisations is imperative for the effective case management of offenders and for strengthening the Agency's links within local communities. The CSA and other associated Acts do not prohibit the sharing of relevant information with external agencies in the interest of offender rehabilitation, reintegration and community safety. When engaged in information sharing with such agencies the type of information and rationale for the disclosure should receive due consideration and be clearly linked to s341 of the CSA (see section 3 of this procedure). Two typical scenarios for interagency are detailed below.
Regular intelligence meetings with Queensland Police are encouraged as a means of protecting the public interest. Such meetings are permitted at the discretion of the Regional Manager as per s341(3)(e)(ii) of the CSA.
The disclosure of confidential information should pertain only to those offenders currently demonstrating high risk behaviours. It is not considered relevant disclosure to release confidential information based solely on static factors such as order type. For example, the inclusion of all board ordered parolees as part of intelligence meetings regardless of their current behaviours is not acceptable disclosure.
In order to exercise their delegation a Regional Manager must predetermine a regional process for approving and documenting the disclosure of confidential information by way of intelligence meetings with Queensland Police. All relevant staff must adhere to that agreed process.
Information sharing with Queensland Police for the purpose of the Child Protection (Offender Reporting) Act 2004 (the CPOR Act), is at the discretion of the supervising officer as per s341(3)(b) because the CPOR Act requires the disclosure of confidential information relating to offenders subject to the CPOR register. The supervising officer's District Manager should predetermine a local process to facilitate cooperation with Queensland Police for the purpose of the CPOR Act 2004 and assure appropriate levels of disclosure of confidential information.
Regular meetings with Child Safety Services within the Department of Communities are encouraged as a means of protecting the public interest. The Child Protection Act 1999 (CPA), specifically s159 outlines requirements for service delivery coordination and information exchange to appropriately and effectively meet the protection and care needs of children. QCS is required to share relevant information with Child Safety Services in order for that agency to carry out the functions of the CPA.
Disclosure in response to requests from Child Safety Services are a disclosure under another law under (s 341(3)(b)) and disclosure is at the discretion of the supervising officer (see section 8). The supervising officer's District Manager should predetermine a local process for the disclosure of information to Child Safety Services and should ensure requests are received in writing where possible.
Legal practitioners seeking information in addition to the current location of an offender must provide a written authority from their client.
If the disclosure of confidential information is sought under a subpoena or under a statutory power or court order, the request should be referred to the Information Rights Unit.
The disclosure of intelligence information under this section does not apply to the disclosure of intelligence information to law enforcement agencies.
The disclosure of intelligence information to a legal practitioner should only be made in writing through the Information Rights Unit.
If the author of the intelligence information considers that the information should not be disclosed, the Information Rights Unit must be provided reasons for the non-disclosure.
The Information Rights Unit will determine whether the information is to be released and, if so, the method of release.
If an offender breaches his or her community based order, a copy of the breach brief may be disclosed to the defendant's lawyer upon request by the lawyer. Material included in a breach brief may include for example all evidentiary material, the relevant court, medical and psychological reports that are directly related to the proceeding.
Material that is not relevant to the breach proceedings must not be disclosed.
Corrective services officers providing such information should do so following consultation with their supervisor and should there be any concern relating to the safety of another person, the relevant delegate should be consulted as per s341(3)(e) of the CSA.
Requests such as subpoenas, summons for documents and victim compensation claims must be referred to the Information Rights Unit.
The name of the corrective services facility in which a prisoner is currently accommodated may be provided to a person who enquires. No other information about the prisoner may be disclosed.
If the enquiry seeks the location of an ex-prisoner, the person should be advised that there is no one by that name in custody. An exception to this may arise if a person wishes to visit a prisoner who has been discharged. If the prisoner has been discharged, the person may be advised that the prisoner has been discharged. No other information about the prisoner may be disclosed.
The fact that an offender is currently under supervision in the community may be disclosed to a person who enquires. No other information may be disclosed about the offender. The name of the probation and parole office that the offender must report to is not to be disclosed under s341(3)(f). The information may be released if another subsection of s341 permits the release.
The disclosure of confidential information does not necessarily require the offender's consent if the release is justified under another sub section of s341. However, should other subsections of s 341 not apply to a particular instance requiring the disclosure of confidential information, an offender's written consent may be obtained.
The release under s341(3)(d) is limited to the offender's private details and not other types of confidential information, for example, intelligence information about the risks posed by the offender or information not relevant to the request.
Staff may access information, including confidential information, where there is a requirement for such information to be used during the course of their official duties. Offenders should be advised during induction that such access may take place.
Refer procedure - Induction
If a corrective services officer acquires information about a person's criminal history or about an investigation relating to the possible commission of an offence by a person, the officer must not disclose the information to any other person. Offence provisions apply to any officer who discloses information relating to a person's criminal history.
Refer CSA s 339
If a corrective services officer is provided with information that may lead him/her to reasonably believe that an offence has been committed or is about to be committed in the immediate future, the Chief Executive or delegate's authority is to be urgently obtained in order to facilitate the disclosure of information to the relevant authority (see section 7).
If an allegation by another person is made against an offender, a corrective services officer must -
Offenders may view or obtain copies of information relating to their private details held on their files. Information that may be viewed by an offender include the offender's -
Information of the kind listed above should only contain an offender's personal information and should not contain matter which would otherwise be defined as 'confidential information' under CSA s 341(4). Information containing other confidential information, for example, intelligence information or information about the risk posed by an offender provided in confidence must not be disclosed to the offender unless some other requirement of s 341 has been satisfied.
An offender's requests for access to content within their offender management file should be referred to the Information Rights Unit.
Refer procedure - Offender File Management (in-confidence) (excluding Medical File)
A person not covered by this procedure requesting more detailed information should be advised to make an application under the RTI Act or the IP Act. Copies of the approved form for making an access application have been provided to correctional centres. They are also available to be downloaded at: http://www.rti.qld.gov.au.
A victim requesting more detailed information in relation to an offender who has committed an offence against the victim should be referred to the Victims Register (refer procedure - Victims Register - Release of Information).
The information disclosed in response to such enquiries should be provided without undue delay and process.